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2. Research

This page hosts research related to the topics covered by this project. That research is largely drawn from the journalism of a host of writers and news organizations whose work is excerpted and linked to below. Supplementary information, where appropriate, is presented as well.

Furthermore, journalists cited who authored this section’s more analytical or opinionated pieces were contacted. They were first asked to briefly summarize the major point or points of their articles – to succinctly state what they think is most important for people to know. Second, they were asked what questions they would ask of campaign officials regarding the topic or topics they wrote about. As responses are received, they will be added below.

Please note that this page will be updated with information and adjusted for purposes of completeness and clarity where and when needed. While simple additions will not be highlighted, any changes that result in a meaningful reversal or restating of a previous argument will be indicated as such.

Finally, this page is designed to host all of the information collected for this project. A shorter and more accessible presentation of this information can be found on the Issue Summaries and Questions page.

I. EXECUTIVE POWER

=Topic 1: Were the military actions taken against Muammar Gaddafi constitutional? (Return to Top)

Relevant Facts and Criticism:

1) As protests and rebellion spread in February, 2011, the United Nations Security Council passed a resolution to, as the New York Times reported, “impose sanctions on Libya’s leader, Col. Muammar el-Qaddafi, and his inner circle of advisers, and called for an international war crimes investigation into ‘widespread and systemic attacks’ against Libyan citizens who have protested against the government over the last two weeks.”

Furthermore, the Times reported that:

…President Obama said that Colonel Qaddafi had lost the legitimacy to rule and should step down. His statement, which the White House said was made during a telephone call with Chancellor Angela Merkel of Germany, was the strongest yet from any American official against Colonel Qaddafi…

The sanctions did not include imposing a no-fly zone over Libya, a possibility that had been discussed by officials from the United States and its allies in recent days.

2) Fighting escalated, and in mid-March, the Security Council acted again, authorizing the use of force. As reported by the U.N.:

The Security Council today effectively authorized the use of force in Libya to protect civilians from attack, specifically in the eastern city of Benghazi, which Colonel Muammar Al-Qadhafi has reportedly said he will storm tonight to end a revolt against his regime.

Acting under Chapter VII of the UN Charter, which provides for the use of force if needed, the Council adopted a resolution by 10 votes to zero, with five abstentions, authorizing Member States “to take all necessary measures… to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamhariya, including Benghazi, while excluding an occupation force.”

The abstentions included China and Russia, which have the power of veto, as well as Brazil, Germany and India.

Expressing grave concern at the deteriorating situation, the escalation of violence, and the heavy civilian casualties, the Council established a no-fly zone, banning all flights – except those for humanitarian purposes – in Libyan airspace in order to help protect civilians. It specifically calls on Arab League states to cooperate with other Member States in taking the necessary measures.

3) On March 19, 2011, the United States launched 112 Tomahawk cruise missiles at targets in Libya, opening what was named “Operation Oddessy Dawn.” U.S. fighter jets were not yet active over Libyan airspace. The U.S. was acting as part of a coalition of nations, including France, the U.K., Spain, Canada, and others.

4) On March 21, 2011, President Obama sent a letter to the Speaker of the House and the President Pro Tempore of the Senate officially informing both bodies of American military action and justifying its legality. The letter read, in part:

The United States has not deployed ground forces into Libya. United States forces are conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster. Accordingly, U.S. forces have targeted the Qadhafi regime’s air defense systems, command and control structures, and other capabilities of Qadhafi’s armed forces used to attack civilians and civilian populated areas. We will seek a rapid, but responsible, transition of operations to coalition, regional, or international organizations that are postured to continue activities as may be necessary to realize the objectives of U.N. Security Council Resolutions 1970 and 1973.

For these purposes, I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action.

5) On March 22, 2011, administration spokesman Ben Rhodes offered justification for American military action:

Ben Rhodes, deputy national security adviser for strategic communications, said Tuesday that, while Congress did not authorize intervention, the White House has kept to the letter of U.S. law by keeping Congress in the loop — with a briefing and a formal letter.

“Our view is that a mission of this kind, which is time-limited, well defined and discreet, clearly falls within the president’s constitutional authority,” Rhodes said, citing former President Bill Clinton’s intervention in Bosnia as precedent.
Obama’s letter to Congress on Monday, which cited the U.N. Security Council resolution authorizing a no-fly zone, pledged to seek “a rapid, but responsible, transition of operations” to carry out the U.N. objectives, “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”

But both Obama and Rhodes said the administration was acting in compliance with the War Powers Resolution of 1973. That means the clock is ticking. Under that resolution, Congress has to either declare war or authorize military action within 60 days. In extreme circumstances, the president could extend that window to 90 days.

6) On March 23, NATO announced that it had taken command of efforts to enforce the embargo authorized by the United Nations. “As of 23 March 2011,” its announcement began, “NATO warships and aircraft are patrolling the approaches to Libyan territorial waters as part of Operation UNIFIED PROTECTOR. Their mission is to reduce the flow of arms, related material and mercenaries to Libya, as called for in UN Security Council Resolution 1973.”

7) On March 28, President Obama addressed the nation concerning actions taken against Libya. He noted that regime change brought about through military means was not the goal of the U.S. forces. His remarks, in part, read:

In just one month, the United States has worked with our international partners to mobilize a broad coalition, secure an international mandate to protect civilians, stop an advancing army, prevent a massacre, and establish a no-fly zone with our allies and partners. To lend some perspective on how rapidly this military and diplomatic response came together, when people were being brutalized in Bosnia in the 1990s, it took the international community more than a year to intervene with air power to protect civilians. It took us 31 days.

Moreover, we’ve accomplished these objectives consistent with the pledge that I made to the American people at the outset of our military operations. I said that America’s role would be limited; that we would not put ground troops into Libya; that we would focus our unique capabilities on the front end of the operation and that we would transfer responsibility to our allies and partners. Tonight, we are fulfilling that pledge…

It’s true that America cannot use our military wherever repression occurs. And given the costs and risks of intervention, we must always measure our interests against the need for action. But that cannot be an argument for never acting on behalf of what’s right. In this particular country -– Libya — at this particular moment, we were faced with the prospect of violence on a horrific scale. We had a unique ability to stop that violence: an international mandate for action, a broad coalition prepared to join us, the support of Arab countries, and a plea for help from the Libyan people themselves. We also had the ability to stop Qaddafi’s forces in their tracks without putting American troops on the ground.

To brush aside America’s responsibility as a leader and -– more profoundly -– our responsibilities to our fellow human beings under such circumstances would have been a betrayal of who we are. Some nations may be able to turn a blind eye to atrocities in other countries. The United States of America is different. And as President, I refused to wait for the images of slaughter and mass graves before taking action…

Now, just as there are those who have argued against intervention in Libya, there are others who have suggested that we broaden our military mission beyond the task of protecting the Libyan people, and do whatever it takes to bring down Qaddafi and usher in a new government.

Of course, there is no question that Libya -– and the world –- would be better off with Qaddafi out of power. I, along with many other world leaders, have embraced that goal, and will actively pursue it through non-military means. But broadening our military mission to include regime change would be a mistake.

The task that I assigned our forces -– to protect the Libyan people from immediate danger, and to establish a no-fly zone -– carries with it a U.N. mandate and international support. It’s also what the Libyan opposition asked us to do. If we tried to overthrow Qaddafi by force, our coalition would splinter. We would likely have to put U.S. troops on the ground to accomplish that mission, or risk killing many civilians from the air. The dangers faced by our men and women in uniform would be far greater. So would the costs and our share of the responsibility for what comes next.

To be blunt, we went down that road in Iraq. Thanks to the extraordinary sacrifices of our troops and the determination of our diplomats, we are hopeful about Iraq’s future. But regime change there took eight years, thousands of American and Iraqi lives, and nearly a trillion dollars. That is not something we can afford to repeat in Libya.

8) The Office of Legal Counsel released a memo on April 1, 2011 entitled “Authority to Use Military Force in Libya.” Law Professor Charles Francis summarized its central arguments, along with the two major issues it raised:

1. OLC has previously concluded that the President not only may deploy troops abroad but also may “take military action” without prior Congressional authorization “for the purpose of protecting important national interests,”…

2. In light of the “gloss” of historical practice, the “vast share of responsibility for the conduct of our foreign relations” belongs to the President, who may act in that context without prior congressional authorization. More specifically, there is a substantial record of military deployments unsupported by prior congressional approval…The functional need for quick decisions in this realm reinforces this conclusion.

3. The War Powers Resolution, with its 60-90 day timetable for the withdrawal of troops from hostilities in the absence of affirmative congressional approval, implicitly recognizes the power of the President to act unilaterally at least within that timeframe.

4. This unilateral authority does not necessarily extend to circumstances qualifying as “war” within the meaning of the Declare War Clause. But not all uses of military force come within the meaning of “war” as used in this context. What counts as war depends on “a fact-specific assessment of the ‘anticipated nature, scope, and duration’ of the planned military operations” (p. 8, quoting the 1994 OLC Haiti letter). In practical terms, this requires “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” (p.8)…

…6. The two key questions with respect to Libya today, therefore, are:

(i) Whether the U.S. has sufficient interests at stake to implicate the unilateral power of the President to use military force, and
(ii) Whether the nature of the force being used crosses the “war” threshold.

9) On April 15, an editorial in The Guardian authored by Obama, Nicolas Sarkozy and David Cameron declared that ousting Gaddafi had become a goal of NATO activities.

Our duty and our mandate under UN Security Council Resolution 1973 is to protect civilians, and we are doing that. It is not to remove Gaddafi by force. But it is impossible to imagine a future for Libya with Gaddafi in power…[S]o long as Gaddafi is in power, Nato and its coalition partners must maintain their operations so that civilians remain protected and the pressure on the regime builds. Then a genuine transition from dictatorship to an inclusive constitutional process can really begin, led by a new generation of leaders.

11) On May 12, as the 60-day threshold neared, Deputy Secretary of State James Steinberg defended the administration’s actions, as reported in the New York Times:

WASHINGTON — President Obama and his legal advisers are deliberating about how the United States military may lawfully continue participating in NATO’s bombing campaign in Libya after next week, when the air war will reach a legal deadline for terminating combat operations that have not been authorized by Congress…

The administration apparently has no intention of pulling out of the Libya campaign, and Mr. Steinberg said that Mr. Obama was committed “to act consistently with the War Powers Resolution.” So the Obama legal team is now trying to come up with a plausible theory for why continued participation by the United States does not violate the law.

The White House, pushing hard against criticism in Congress over the deepening air war in Libya, asserted Wednesday that President Obama had the authority to continue the military campaign without Congressional approval because American involvement fell short of full-blown hostilities.

In a 38-page report sent to lawmakers describing and defending the NATO-led operation, the White House said the mission was prying loose Col. Muammar el-Qaddafi’s grip on power.

In contending that the limited American role did not oblige the administration to ask for authorization under the War Powers Resolution, the report asserted that “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.” Still, the White House acknowledged, the operation has cost the Pentagon $716 million in its first two months and will have cost $1.1 billion by September at the current scale of operations…

“We are acting lawfully,” said Harold H. Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with the White House counsel, Robert Bauer.

“We are acting lawfully,” said Harold H. Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with the White House counsel, Robert Bauer.

The two senior administration lawyers contended that American forces had not been in “hostilities” at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to primarily a supporting role — providing refueling and surveillance to allied warplanes, although remotely piloted drones operated by the United States periodically fire missiles, too.

They argued that United States forces are at little risk because there are no troops on the ground and Libyan forces are unable to exchange fire with them meaningfully. And they said the military mission was constrained by a United Nations Security Council resolution, which authorized air power for the purpose of defending civilians.

“We are not saying the president can take the country into war on his own,” said Mr. Koh, a former Yale Law School dean and outspoken critic of the Bush administration’s expansive theories of executive power. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.” …

Jack L. Goldsmith, who led the Justice Department’s Office of Legal Counsel during the Bush administration, said the Obama theory would set a precedent expanding future presidents’ unauthorized war-making powers, especially given the rise of remote-controlled combat technology.

“The administration’s theory implies that the president can wage war with drones and all manner of offshore missiles without having to bother with the War Powers Resolution’s time limits,” Mr. Goldsmith said…
The administration had earlier argued that Mr. Obama could initiate the intervention on his own authority as commander in chief because its anticipated nature, scope and duration fell short of a “war” in the constitutional sense. Since then, the conflict has dragged on for longer than expected, and the goal of the NATO allies has all but openly shifted from merely defending civilians to forcing the Libyan leader, Colonel Qaddafi, from power. But Mr. Koh and Mr. Bauer said that while regime change in Libya might be a diplomatic goal, the military’s mission was separate and remained limited to protecting civilians.

While many presidents have challenged the constitutionality of other aspects of the War Powers Resolution — which Congress enacted over President Richard M. Nixon’s veto — no administration has declared that the section imposing the 60-day clock is unconstitutional, and in 1980, the Justice Department’s Office of Legal Counsel concluded that it was within Congress’s power to enact such a limit…
Mr. Koh noted that there had been disputes about whether the 60-day clock of the War Powers Resolution (a deadline that can be extended for 30 days under some circumstances) applied to deployments in which — unlike in Libya — there were troops on the ground and American casualties.

Still, such previous cases involved peacekeeping missions in which the United States had been invited in, and there were only infrequent outbreaks of violence — as in Lebanon, Somalia and Bosnia. The Libyan operation, by contrast, is an offensive mission involving sustained bombardments of a government’s forces.

Furthermore, a letter from the Department of Defense to House Speaker John Boehner dated June 15 included the following assertions:

It emphasized the limited nature, scope and duration of the anticipated actions

It said the actions were pursuant to the President’s foreign affairs powers

It stated that, “The President is of the view that the current U.S. military operations in Libya are consistent with the War Powers Resolution and do not under that law require further congressional authorization, because U.S. military operations are distinct from the kind of ‘hostilities’ contemplated by the Resolution’s 60 day termination provision.”

It stated that, “U.S. forces are playing a constrained and supporting role in a multinational coalition, whose operations are both legitimated by and limited to the terms of a United Nations Security Council Resolution that authorizes the use of force solely to protect civilians and civilian populated areas under attack or threat of attack and to enforce a no-fly zone and an arms embargo.”

It stated that, “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve the presence of or any significant chance of escalation into a conflict characterized by those factors.”

It stated that the “Administration has consulted extensively with Congress.”

14) On August 22, Jorge Benitez of The Atlantic Councilestimated using NATO statistics that between March 31 and June 30, U.S. forces were responsible for “801 strike sorties,” or 16 percent of all sorties during that period.

According to official NATO statistics, between March 31 and November, 2011, when the organization’s role was complete, more than 26,500 total sorties were flown. That included more than 9,700 strike sorties (which NATO defined as sorties “intended to identify and engage appropriate targets, but [that] do not necessarily deploy munitions each time”). Furthermore, these sorties “Destroyed over 5,900 military targets including over 400 artillery or rocket launchers and over 600 tanks or armored vehicles.”

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1) On March 9, 2011, Yale law professors Bruce Ackerman and Oona Hathaway authored an op-ed challenging the constitutionality of the U.S. engaging in military activities without congressional approval:

The president does have the constitutional power to repel attacks on the homeland, but nobody suggests that Gaddafi’s assault on his domestic enemies is a threat to the United States. An attack on Libya’s air defenses would be a war of choice, not self-defense.

No existing statute or treaty allows this action. Gaddafi isn’t linked to Al Qaeda, so an attack against him isn’t supported by the resolution authorizing force against terrorists involved in 9/11. If Obama goes it alone, he must return to Bush-era assertions that the president, as commander-in-chief, can unilaterally launch the nation into war.

Upon taking office, President Obama immediately withdrew opinions written by John Yoo and others making these extreme claims. And his Justice Department has refrained from asserting unilateral presidential power in the conduct of the wars Obama has inherited: Iraq, Afghanistan, and the drone attacks in Pakistan and Yemen.

But Libya would be Obama’s war. If he acts unilaterally, he will be consolidating one of the worst aspects of the Bush era, and set a precedent for further abuses by future presidents.

After the Vietnam War, Congress passed the War Powers Resolution, which granted the president the power to act unilaterally for 60 days in response to a “national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” The law gave the chief executive an additional 30 days to disengage if he failed to gain congressional assent during the interim.

But, again, these provisions have little to do with the constitutionality of the Libyan intervention, since Libya did not attack our “armed forces.” The president failed to mention this fundamental point in giving Congress notice of his decision on Monday, in compliance with another provision of the resolution. Without an armed “attack,” there is no compelling reason for the president to cut Congress out of a crucial decision on war and peace.

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2) On March 18, Glenn Greenwald highlighted statements made during the 2008 presidential campaign by then-Senators Obama and Hillary Clinton regarding the constitutionality of presidents authorizing military strikes without congressional approval. Both Clinton and Obama were responding to a question from Charlie Savage, who at the time wrote for the Boston Globe. Savage asked,

2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites — a situation that does not involve stopping an IMMINENT threat?)

Obama responded:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.

As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.

Clinton responded:

The President has the solemn duty to defend our Nation. If the country is under truly imminent threat of attack, of course the President must take appropriate action to defend us. At the same time, the Constitution requires Congress to authorize war. I do not believe that the President can take military action – including any kind of strategic bombing – against Iran without congressional authorization. That is why I have supported legislation to bar President Bush from doing so and that is also why I think it is irresponsible to suggest, as some have recently, that anything Congress already has enacted provides that authority.

3) In that same post, Greenwald also wrote:

The arguments made to justify such unilateral presidential action are uniquely unpersuasive. Former Bush OLC official and Harvard Law Professor Jack Goldsmith, along with others, points to Clinton’s air bombing campaign of Kosovo without Congressional approval, but the mere fact that X happened in the past does not mean X is justifiable; that would be like pointing to FDR’s internment of Japanese-Americans to argue that Presidents are constitutionally empowered to imprison American citizens on U.S. soil without due process. I’ve also heard the claim that actions undertaken as part of NATO or the U.N. are somehow exempt from the constitutional requirement, but the fact that a war is fought with allies does not make it any less of a war (Congress declared war during World War II; it also voted to authorize the first Gulf War and the attack on Afghanistan even though they were done, respectively, through the U.N. and NATO). And then there’s the notion that the War Powers Act entitles a President to order military force for a limited time without Congress, but that constitutionally dubious statute has never been tested and thus does not remotely resolve the constitutional question.

The civil war in Libya is a perfect case of “a situation that does not involve stopping an actual or imminent threat to the nation.” While the president is limited by the Constitution to repelling or forestalling attack, Congress can declare war for a variety of purposes beyond simple defense. But as a member of the United Nations, the U.S. must abide by the provisions of the U.N. Charter.

The provisions of the Charter are ambiguous, but the soundest interpretation is that under Article 51 countries can wage wars of national or regional self-defense without the approval of the U.N. Security Council. However, under Article 42, Security Council approval is necessary for wars undertaken for other, non-defensive purposes.

It is not clear whether there are limits on what kinds of military actions, in addition to wars of self-defense, that the Security Council can authorize, to deal with a “threat to peace, breach of the peace, or act of aggression,” as described in Article 39. The Security Council was designed to act as a great power concert capable of intervening to nip international crises in the bud. Whether one thinks it is prudent or not, intervention in the Libyan civil war, in order to avert, say, floods of refugees spilling over the borders or washing up on the shores of southern Europe, would seem to be the sort of thing the Security Council has the power to authorize.

However, while the Security Council can authorize member states to undertake a war for purposes other than national or regional self-defense, it cannot order any country to do so. The U.S. agreed to participate in the United Nations only because the U.N. charter makes it clear that each member state has the right to decide, on the basis of its internal constitutional processes, whether to take part in an enforcement action authorized by the Security Council.

In other words, there are two distinct systems of authorization, one international and one national. Under international law, the U.S. lacks the authority to engage in wars unrelated to its own defense or that of its allies. Security Council action might lift that legal restraint. But once the Security Council has acted, Congress must still authorize the military action by formal voting, not by mere “consultation” with the president.

Many of us supported this president because he promised to bring back the constitutional balance after the theories of Yoo, Delahunty, et al put the president on a par with emperors and kings in wartime. And yet in this Libya move, what difference is there between Bush and Obama?

President Obama failed to seek a declaration of war before ordering US attacks on Libya. Now, he faces a challenge under the War Powers Resolution.

By any reasonable reading of the Constitution, that was a violation of the provision in the founding document that requires the executive to attain authorization from Congress before launching military adventures abroad. But presidents have skirted that requirement in recent decades by claiming that the 1973 War Powers Resolution—an act originally intended to constrain presidential war-making—affords them the freedom to fight first and consult Congress later.

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7) On May 12, Daniel Larison of The American Conservative published the following analysis:

The President has no authority under the Constitution to do what Obama has done in Libya. The Libyan war doesn’t even have the ridiculous Clinton administration excuse of “implicit authorization” through a vote for funding the war, and to this day the Libyan war continues to be funded out of the Pentagon’s current budget. The Constitution did not vest the President with the power to start a war against another state (or anyone else) on his authority. This is the very sort of arbitrary war that the Framers sought to avoid. War powers were not ambiguously divided. They were very clearly divided. Since WWII and especially since Korea, the divisions have been blurred by executive usurpation and Congressional surrender, and members of both parties have been happy to collaborate in this blurring when the executive was under their party’s control. The fact that Congress has completely failed to check the executive in this matter doesn’t make Obama’s actions legal. It just means that there will apparently be no attempt to hold him accountable for his illegal war.

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8) On May 19, 2011, as the 60th day of American military action approached, Glenn Greenwald argued that the War Powers Resolution, already a shaky justification for Obama’s actions, was about to be eclipsed on a second front:

Section 1541(c) explicitly states that the war-making rights conferred by the statute apply only to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”…

But even for those who chose to cling to the fiction that the presidential war in Libya was authorized by the WPR, that fiction is now coming to a crashing end. Friday will mark the 60th day of the war without Congress, and there are no plans for authorization to be provided. By all appearances, the White House isn’t even bothering to pretend to seek one.

Make no mistake: Obama is breaking new ground, moving decisively beyond his predecessors. George W. Bush gained congressional approval for his wars in Afghanistan and Iraq. Bill Clinton acted unilaterally when he committed American forces to NATO’s bombing campaign in Kosovo, but he persuaded Congress to approve special funding for his initiative within 60 days. And the entire operation ended on its 78th day.

In contrast, Congress has not granted special funds for Libya since the bombing began, and the campaign is likely to continue beyond the 30-day limit set for termination of all operations.

Since the House of Representatives is out of session this week, Congress can’t approve the operation before the Friday deadline. But under the expedited procedures specified by the act, speedy congressional approval is feasible next week.

If nothing happens, history will say that the War Powers Act was condemned to a quiet death by a president who had solemnly pledged, on the campaign trail, to put an end to indiscriminate warmaking.

=Topic 2: What legal and executive power precedents have been set by the killing of Anwar al-Awlaki and, more broadly, America’s use of drones? (Return to Top)

Relevant Facts and Criticism:

1) Anwar al-Awlaki, an American citizen, was killed by a U.S. drone strike in Yemen on September 20, 2011.

2) Al-Awlaki, who left the United States and became a preacher in Yemen, had released many videos online which (among other things) advocated or justified violence against Americans. He was quoted in Inspire, Al Qaeda’s magazine, and was killed alongside Samir Khan, the magazine’s editor. By his own admission, he was in contact with Nidal Hasan, who carried out the shootings in Fort Hood, Texas, though he denied encouraging Hasan to commit his crimes. It was also alleged that he was in touch with Umar Farouk Abdulmutallab, the so-called “underwear bomber.”

3) Al-Awlaki was on a list of individuals to be targeted by the American military with lethal force. The list is maintained by the White House. As reported in October of 2011 by Reuters:

(Reuters) – American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions, according to officials.

There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council, several current and former officials said. Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

The panel was behind the decision to add Awlaki, a U.S.-born militant preacher with alleged al Qaeda connections, to the target list. He was killed by a CIA drone strike in Yemen late last month.

The role of the president in ordering or ratifying a decision to target a citizen is fuzzy. White House spokesman Tommy Vietor declined to discuss anything about the process.

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4) In May of 2012, an article by Scott Shane and Jo Becker in the New York Timesfurther documented the process by which individuals are added to this list:

Mr. Obama has placed himself at the helm of a top secret “nominations” process to designate terrorists for kill or capture, of which the capture part has become largely theoretical. He had vowed to align the fight against Al Qaeda with American values; the chart, introducing people whose deaths he might soon be asked to order, underscored just what a moral and legal conundrum this could be.

5) Multiple high-ranking administration officials have defended the means in which drones are being used by the U.S. military.

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A. In March, 2010, Harold Koh, Legal Advisor to the State Department, spoke to the American Society of International Law. In his remarks, he addressed the legality of targeted killings abroad:

As recent events have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks. As you know, this is a conflict with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks against us and our allies while hiding among civilian populations. That behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians. Of course, whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses. In particular, this Administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

In U.S. operations against al-Qaeda and its associated forces– including lethal operations conducted with the use of unmanned aerial vehicles– great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.
Recently, a number of legal objections have been raised against U.S. targeting practices. While today is obviously not the occasion for a detailed legal opinion responding to each of these objections, let me briefly address four:

First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.

Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

Third, some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

In sum, let me repeat: as in the area of detention operations, this Administration is committed to ensuring that the targeting practices that I have described are lawful.

The Obama administration’s top Pentagon lawyer on Wednesday said that American citizens who join Al Qaeda can be targeted for killing and that courts should have no role in reviewing executive branch decisions about whether someone has met such criteria.

“Belligerents who also happen to be U.S. citizens do not enjoy immunity where non-citizen belligerents are valid military objectives,” said Jeh C. Johnson, the Defense Department general counsel, in a speech at Yale Law School.

Mr. Johnson’s remarks offered an unusually comprehensive and public declaration of the Obama administration’s national security legal policy views in the war against Al Qaeda and its allies. While the outlines of those views have been aired in pieces before, officials usually discuss such matters only on condition of anonymity.

In raising the targeted killing of an American citizen, Mr. Johnson emphasized that he was not talking about any particular operation. The administration has declined to discuss its killing last September of Anwar Al-Awlaki, a New Mexico-born radical Islamist cleric who died in a drone strike in Yemen that technically remains a covert operation.

Still, Mr. Johnson invoked a lawsuit filed by Mr. Awlaki’s father before the killing that had sought an injunction against targeting his son, citing with approval a district judge’s decision to dismiss the case and saying that targeting decisions are not suited to court review because they must be made quickly and based on fast-evolving intelligence…

Mr. Johnson also emphasized that even though the conflict is against an unconventional force, the administration believes that it must apply conventional legal principles – like the Geneva Conventions, international laws of armed conflict, and traditional ways of interpreting domestic wartime statutes – in waging it.

Still, he described a broad interpretation of the authorization by Congress to use military force against the perpetrators of the Sept. 11, 2001, attacks, saying that nothing in that statute limited the ability to wage war against Al Qaeda and its allies to the so-called “hot” battlefield zone of Afghanistan.

“The legal point is important because, in fact, over the last 10 years Al Qaeda has not only become more decentralized, it has also, for the most part, migrated away from Afghanistan to other places where it can find safe haven,” Mr. Johnson said.

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C. On March 5, 2012, Eric Holder defended the government’s actions in a speech at Northwestern University:

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law…

Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances: First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.

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D. In April, 2012, John Brennan, Assistant to the President for Homeland Security and Counterterrorism, spoke on the use of drones at Princeton’s Woodrow Wilson Center. He introduced the topic as follows:

I stand here as someone who has been involved with our nation’s security for more than 30 years. I have a profound appreciation for the truly remarkable capabilities of our counterterrorism professionals, and our relationships with other nations, and we must never compromise them. I will not discuss the sensitive details of any specific operation today. I will not, nor will I ever, publicly divulge sensitive intelligence sources and methods. For when that happens, our national security is endangered and lives can be lost. At the same time, we reject the notion that any discussion of these matters is to step onto a slippery slope that inevitably endangers our national security. Too often, that fear can become an excuse for saying nothing at all, which creates a void that is then filled with myths and falsehoods. That, in turn, can erode our credibility with the American people and with foreign partners, and it can undermine the public’s understanding and support for our efforts. In contrast, President Obama believes that done carefully, deliberately and responsibly we can be more transparent and still ensure our nation’s security.

So let me say it as simply as I can. Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts targeted strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones. And I’m here today because President Obama has instructed us to be more open with the American people about these efforts.

Brennan went on to argue:

That drone strikes were legal under domestic law and international law: “The Authorization for Use of Military Force, the AUMF, passed by Congress after the September 11th attacks authorized the president “to use all necessary and appropriate forces” against those nations, organizations, and individuals responsible for 9/11. There is nothing in the AUMF that restricts the use of military force against al-Qaida to Afghanistan…As a matter of international law, the United States is in an armed conflict with al-Qaida, the Taliban, and associated forces, in response to the 9/11 attacks, and we may also use force consistent with our inherent right of national self-defense.”

That drone strikes are ethical:”…[O]ne could argue that never before has there been a weapon that allows us to distinguish more effectively between an al-Qaida terrorist and innocent civilians…By targeting an individual terrorist or small numbers of terrorists with ordnance that can be adapted to avoid harming others in the immediate vicinity, it is hard to imagine a tool that can better minimize the risk to civilians than remotely piloted aircraft.”

That the use of drones is “wise”:”Remotely piloted aircraft in particular can be a wise choice because of geography, with their ability to fly hundreds of miles over the most treacherous terrain, strike their targets with astonishing precision, and then return to base. They can be a wise choice because of time, when windows of opportunity can close quickly and there just may be only minutes to act.

They can be a wise choice because they dramatically reduce the danger to U.S. personnel, even eliminating the danger altogether. Yet they are also a wise choice because they dramatically reduce the danger to innocent civilians…There’s another reason that targeted strikes can be a wise choice, the strategic consequences that inevitably come with the use of force. As we’ve seen, deploying large armies abroad won’t always be our best offense. ”

Brennan also addressed the question of what precedents America was setting with its use of drones:

The United States is the first nation to regularly conduct strikes using remotely piloted aircraft in an armed conflict. Other nations also possess this technology, and any more nations are seeking it, and more will succeed in acquiring it. President Obama and those of us on his national security team are very mindful that as our nation uses this technology, we are establishing precedents that other nations may follow, and not all of those nations may — and not all of them will be nations that share our interests or the premium we put on protecting human life, including innocent civilians.

This leads me to the final point I want to discuss today, the rigorous standards and process of review to which we hold ourselves today when considering and authorizing strikes against a specific member of al-Qaida outside the hot battlefield of Afghanistan. What I hope to do is to give you a general sense, in broad terms, of the high bar we require ourselves to meet when making these profound decisions today. That includes not only whether a specific member of al-Qaida can legally be pursued with lethal force, but also whether he should be.

Over time, we’ve worked to refine, clarify, and strengthen this process and our standards, and we continue to do so. If our counterterrorism professionals assess, for example, that a suspected member of al-Qaida poses such a threat to the United States to warrant lethal action, they may raise that individual’s name for consideration. The proposal will go through a careful review and, as appropriate, will be evaluated by the very most senior officials in our government for a decision…
Even if it is lawful to pursue a specific member of al-Qaida, we ask ourselves whether that individual’s activities rise to a certain threshold for action, and whether taking action will, in fact, enhance our security.

For example, when considering lethal force we ask ourselves whether the individual poses a significant threat to U.S. interests…

A significant threat might be posed by an individual who is an operational leader of al-Qaida or one of its associated forces. Or perhaps the individual is himself an operative, in the midst of actually training for or planning to carry out attacks against U.S. persons and interests. Or perhaps the individual possesses unique operational skills that are being leveraged in a planned attack…

In addition, our unqualified preference is to only undertake lethal force when we believe that capturing the individual is not feasible…

Finally, when considering lethal force we are of course mindful that there are important checks on our ability to act unilaterally in foreign territories. We do not use force whenever we want, wherever we want. International legal principles, including respect for a state’s sovereignty and the laws of war, impose constraints. The United States of America respects national sovereignty and international law…
For example, we only authorize a particular operation against a specific individual if we have a high degree of confidence that the individual being targeted is indeed the terrorist we are pursuing. This is a very high bar…

In addition, we only authorize a strike if we have a high degree of confidence that innocent civilians will not be injured or killed, except in the rarest of circumstances…

Our commitment to ensuring accuracy and effectiveness continues even after a strike. In the wake of a strike, we harness the full range of our intelligence capabilities to assess whether the mission in fact achieved its objective. We try to determine whether there was any collateral damage, including civilian deaths. There is, of course, no such thing as a perfect weapon, and remotely piloted aircraft are no exception.

As the president and others have acknowledged, there have indeed been instances when, despite the extraordinary precautions we take, civilians have been accidently killed or worse — have been accidentally injured, or worse, killed in these strikes. It is exceedingly rare, but it has happened. When it does, it pains us, and we regret it deeply, as we do any time innocents are killed in war. And when it happens we take it very, very seriously. We go back and we review our actions. We examine our practices. And we constantly work to improve and refine our efforts so that we are doing everything in our power to prevent the loss of innocent life. This too is a reflection of our values as Americans.

Ensuring the ethics and efficacy of these strikes also includes regularly informing appropriate members of Congress and the committees who have oversight of our counterterrorism programs. Indeed, our counterterrorism programs, including the use of lethal force, have grown more effective over time because of congressional oversight and our ongoing dialogue with members and staff.

This is the seriousness, the extraordinary care, that President Obama and those of us on his national security team bring to this weightiest of questions: Whether to pursue lethal force against a terrorist who is plotting to attack our country.

When that person is a U.S. citizen, we ask ourselves additional questions. Attorney General Holder has already described the legal authorities that clearly allow us to use lethal force against an American citizen who is a senior operational leader of al-Qaida. He has discussed the thorough and careful review, including all relevant constitutional considerations, that is to be undertaken by the U.S. government when determining whether the individual poses an imminent threat of violent attack against the United States…

I would just like to close on a personal note. I know that for many people in our government and across the country the issue of targeted strikes raised profound moral questions. It forces us to confront deeply held personal beliefs and our values as a nation. If anyone in government who works in this area tells you they haven’t struggled with this, then they haven’t spent much time thinking about it. I know I have, and I will continue to struggle with it as long as I remain in counterterrorism.

But I am certain about one thing. We are at war. We are at war against a terrorist organization called al-Qaida that has brutally murdered thousands of Americans, men, women and children, as well as thousands of other innocent people around the world. In recent years, with the help of targeted strikes, we have turned al-Qaida into a shadow of what it once was. They are on the road to destruction.

Until that finally happens, however, there are still terrorists in hard-to-reach places who are actively planning attacks against us. If given the chance, they will gladly strike again and kill more of our citizens. And the president has a Constitutional and solemn obligation to do everything in his power to protect the safety and security of the American people.

Yes, war is hell. It is awful. It involves human beings killing other human beings, sometimes innocent civilians. That is why we despise war. That is why we want this war against al-Qaida to be over as soon as possible, and not a moment longer. And over time, as al-Qaida fades into history and as our partners grow stronger, I’d hope that the United States would have to rely less on lethal force to keep our country safe.

Until that happens, as President Obama said here five years ago, if another nation cannot or will not take action, we will. And it is an unfortunate fact that to save many innocent lives we are sometimes obliged to take lives, the lives of terrorists who seek to murder our fellow citizens.

“This is an important statement – first because it includes an unambiguous acknowledgement of the targeted killing program and second because it includes the administration’s clearest explanation thus far of the program’s purported legal basis.” [ACLU Deputy Legal Director Jameel] Jaffer said.

“But Mr. Brennan supplies legal conclusions, not legal analysis. We continue to believe that the administration should release the Justice Department memos underlying the program – particularly the memo that authorizes the extrajudicial killing of American terrorism suspects. And the administration should release the evidence it relied on to conclude that an American citizen, Anwar al-Aulaqi, could be killed without charge, trial, or judicial process of any kind.”

Brennan maintained the Obama administration was committed to transparency when it came to deciding who would be subject to lethal drone strikes. But Hina Shamsi, director of the ACLU National Security Project, said the program is both unconstitutional and overly broad.

“We continue to believe, based on the information available, that the program itself is not just unlawful but dangerous. This statement makes clear that the administration is treating legal restrictions on the use of force as questions of preference. Moreover, it is dangerous to characterize the entire planet as a battlefield,” Shamsi said.

“It is dangerous to give the President the authority to order the extrajudicial killing of any person – including any American – he believes to be a terrorist. The administration insists that the program is closely supervised, but to propose that a secret deliberation that takes place entirely within the executive branch constitutes ‘due process’ is to strip the Fifth Amendment of its essential meaning.”

The Critics Speak:

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1) Glenn Greenwald, who has advanced a multiple arguments challenging the constitutionality of Awlaki’s killing, has firstly argued that speech advocating violence against the United States is not automatically a crime. As Greenwald has explained, in Brandenburg vs. Ohio, the Supreme Court declared such speech to be protected under the 1st Amendment. The only exception, as far as language is concerned, is when, in the words of the Court, “such advocacy is directed to inciting or producing imminent lawless action…” This (Greenwald says) would not apply to al-Awlaki’s general advocacy of violence against the United States and its citizens.

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2) However, the Obama administration did not base its rationale for the killing on al-Awlaki’s words alone. Instead, it has stated publicly that he was actively involved in terrorist plots, making him a direct combatant against the U.S. In September of 2011, shortly after al-Awlaki was killed, White House Spokesman Jay Carney referred to him this way:

“I think it has been well established, and it has certainly been the position of this administration and the previous administration that he is a leader in — was a leader in AQAP [Al Qaeda in the Arabian Peninsula]; that AQAP was a definite threat, was operational, planned and carried out terrorist attacks…”

Similarly, during his Northwestern University speech on March 5, 2012, Attorney General Eric Holder called him “a leader of al Qaeda in the Arabian Peninsula.”

And upon al-Awlaki’s death, Obama himself described him as “the leader of external operations for Al Qaeda in the Arabian Peninsula” and an individual who “took the lead in planning and directing the efforts to murder innocent Americans.”

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3) However, al-Awlaki was never tried in court. For this reason, neither a judge, a jury, or the public were ever given a chance to evaluate evidence of what the government claimed was his operational involvement with terrorist plots.

The lack of publicly available evidence becomes apparent when we consider available press reports on the subject. A great deal of the alleged evidence presented by the media about al-Awlaki’s activities consists of statements taken from government officials. For example, this CBS News article from March 18, 2011 (also linked to above) asserted that:

“Al-Awalki appears to be in a leadership role when it comes to directing terrorist operations and selecting targets for al Qaeda in the Arabian Peninsula, a law enforcement source told CBS News investigative producer Pat Milton.”

But that law enforcement source isn’t identified. That same article reports the allegation – based on the same unnamed source – that Awlaki helped direct Abdulmutallab’s bombing attempt, as well as offering a supporting quote from an anonymous “senior U.S. intelligence official”:

“The source said Abdulmutallab told investigators he was guided by al-Awalki to detonate the bomb over U.S. soil, unlike the failed British bomber plot in 2006 when the bombers were instructed to detonate bombs on airliners over the ocean on the way to the U.S. so that there would be no evidence left behind. Al-Awlaki himself said in a recent interview that he and Abdulmutallab had kept in contact. A senior U.S. intelligence official said al-Awlaki represented the biggest name on the list of people Abdulmutallab might have information against. Both spoke on condition anonymity to discuss the sensitive ongoing investigation.

Here’s another article on that same topic, this one published in the Huffington Post earlier this year. Note the sourcing:

“The United States on Friday submitted a memorandum to a Michigan federal judge revealing that terrorist leader Anwar al Awlaki had more direct involvement that previously known in the so-called underwear bomber’s preparations to blow up Northwest Flight 253 on Christmas Day 2009…A White House official, speaking on background, said the details disclosed in the memo, which were gained from Abdulmutallab through debriefing statements made to FBI agents in April 2010, help show that military detentions are unnecessary to combat terrorism.”

As mentioned earlier, al-Awlaki is also routinely attached to the shootings Nidal Hasan carried out at Fort Hood. But did he advocate violence? An ABC piece from 2009 suggested as much, but in doing so referenced an unnamed “American official with top secret access” to the emails sent between al-Awlaki and Hasan.

“The danger Awlaki poses to this country is no longer confined to words,” said an American official, who like other current and former officials interviewed for this article spoke of the classified counterterrorism measures on the condition of anonymity. “He’s gotten involved in plots.”

And in September, 2011, ABC News again cited unnamed “US officials” and a single “terror expert” (who was named) in an article which alleged that al-Awlaki had an operational role in numerous plots, “whether by simply pushing the attackers over the violent edge or by personally guiding them through operations.”

Indeed, the administration has not been eager to release hard evidence of al-Awlaki’s activities. For example, when a suit was filed on behalf of al-Awlaki’s family asking for him to be removed from a list of individuals targeted for lethal military action, the government argued that the suit should be dismissed, claiming that allowing it to go forward would reveal “state secrets.” In other words, it was arguing that it didn’t have to make a public case against him, because doing so would damage national security.

Furthermore, and as referenced above, the ACLU has filed a FOIA request in an attempt to force the administration to release the evidence it claims to have about al-Awalki’s activities, arguing that, “To know whether the government’s conduct is lawful, we need to know the legal standards the government has adopted, but we also need to know something about the factual contexts in which the government believes those standards have been satisfied.” The organization’s lawyers are still waiting.

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4) One of the central questions raised, then, becomes whether or not al-Awlaki received the benefits of due process afforded to all U.S. citizens. In his Northwestern speech, Holder addressed the question of the legal process was followed:

Now, it is an unfortunate but undeniable fact that some of the threats we face come from a small number of United States citizens who have decided to commit violent attacks against their own country from abroad. Based on generations-old legal principles and Supreme Court decisions handed down during World War II, as well as during this current conflict, it’s clear that United States citizenship alone does not make such individuals immune from being targeted. But it does mean that the government must take into account all relevant constitutional considerations with respect to United States citizens – even those who are leading efforts to kill innocent Americans. Of these, the most relevant is the Fifth Amendment’s Due Process Clause, which says that the government may not deprive a citizen of his or her life without due process of law.

The Supreme Court has made clear that the Due Process Clause does not impose one-size-fits-all requirements, but instead mandates procedural safeguards that depend on specific circumstances. In cases arising under the Due Process Clause – including in a case involving a U.S. citizen captured in the conflict against al Qaeda – the Court has applied a balancing approach, weighing the private interest that will be affected against the interest the government is trying to protect, and the burdens the government would face in providing additional process. Where national security operations are at stake, due process takes into account the realities of combat…

Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history. Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time. The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.

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5) However, this argument has been challenged. Glenn Greenwald has raised multiple objections. First, he has argued that the administration’s refusal to present its alleged evidence against al-Awlaki in a court is unjustified:

Providing evidence and proving their accusations is exactly the opposite of what Obama officials did in the Awlaki killing. Not only did they refrain from indicting this Obviously Guilty Terrorist Against Whom There is So Much (Secret) Evidence, but even when they were brought into court by the ACLU and CCR, they adhered faithfully to the Bush/Cheney playbook of invoking an array of procedural and secrecy arguments as to why they need not present evidence of Awlaki’s guilt before killing him.

Similarly, along these lines, he has written:

What’s crucial to keep in mind is that nobody can see this “evidence” which these anonymous government officials are claiming exists. It’s in their exclusive possession. As a result, they’re able to characterize it however they want, to present it in the best possible light to support their pro-assassination position, and to prevent any detection of its flaws. As any lawyer will tell you, anyone can make a case for anything when they’re in exclusive possession of all the relevant evidence and are the only side from whom one is hearing; all evidence becomes less compelling when it’s subjected to adversarial scrutiny.

Third, he has argued against the constitutionality of the kill list maintained by the White House:

So a panel operating out of the White House — that meets in total secrecy, with no known law or rules governing what it can do or how it operates — is empowered to place American citizens on a list to be killed by the CIA, which (by some process nobody knows) eventually makes its way to the President, who is the final Decider. It is difficult to describe the level of warped authoritarianism necessary to cause someone to lend their support to a twisted Star Chamber like that…

Fourth, he argued that those who claimed George W. Bush violated the civil liberties of Americans must oppose Obama’s actions as well:

How can anyone who vocally decried Bush’s mere eavesdropping and detention powers without judicial review possibly justify Obama’s executions without judicial review? How can the former (far more mild powers) have been such an assault on Everything We Stand For while the latter is a tolerable and acceptable assertion of war powers?

Fifth, he has accused both Obama and Holder of hypocrisy regarding due process:

Throughout the Bush years, then-Sen. Obama often spoke out so very eloquently about the Vital Importance of Due Process even for accused Terrorists. As but one example, he stood up on the Senate floor and denounced Bush’s Guantanamo detentions on the ground that a “perfectly innocent individual could be held and could not rebut the Government’s case and has no way of proving his innocence.” He spoke of “the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.” He mocked the right-wing claim “that judicial inquiry is an antique, trivial and dispensable luxury.” He acknowledged that the Government will unavoidably sometimes make mistakes in accusing innocent people of being Terrorists, but then provided the obvious solution: “what is avoidable is refusing to ever allow our legal system to correct these mistakes.” How moving is all that? What a stirring tribute to the urgency of allowing accused Terrorists a day in court before punishing them.

Then we have Eric Holder, who in 2008 gave a speech to the American Constitution Society denouncing Bush’s executive power radicalism and calling for a “public reckoning.” He specifically addressed the right-wing claim that Presidents should be allowed to eavesdrop on accused Terrorists without judicial review in order to Keep Us Safe.

…in the 2004 case of Hamdi v.Rumsfeld, the Supreme Court rejected the Bush administration’s argument that it could detain American citizens accused of Terrorism without any process for them to contest the accusations against them, though the Court held that something less than a full-scale trial could satisfy the Due Process clause. But as Marcy Wheeler points out, the Court imposed “due process” requirements that are the exact opposite of what the Obama administration is doing with its assassinations.

6) Others have also raised questions pertaining to the transparency of the process surrounding al-Awlaki and the lack of publicly available evidence against him. Greenwald has written that that al-Awlaki’s 5th Amendment rights were clearly violated:

What’s most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar (“No person shall be deprived of life without due process of law”), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What’s most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government.

But in addition, we can find the following commentaries and analysis:

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a) In September, 2011, shortly after al-Awlaki’s killing, Jake Tapper of ABC confronted White House spokesman Jay Carney during a press briefing about the lack of publicly available evidence regarding al-Awlaki’s activities:

JAKE TAPPER: You said that Awlaki was demonstrably and provably involved in operations. Do you plan on demonstrating —
MR. CARNEY: I should step back. He is clearly — I mean “provably” may be a legal term. I think it has been well established, and it has certainly been the position of this administration and the previous administration that he is a leader in — was a leader in AQAP; that AQAP was a definite threat, was operational, planned and carried out terrorist attacks that, fortunately, did not succeed, but were extremely serious — including the ones specifically that I mentioned, in terms of the would-be Christmas Day bombing in 2009 and the attempt to bomb numerous cargo planes headed for the United States. And he was obviously also an active recruiter of al Qaeda terrorists. So I don’t think anybody in the field would dispute any of those assertions.
JT: You don’t think anybody else in the government would dispute that?
MR. CARNEY: Well, I wouldn’t know of any credible terrorist expert who would dispute the fact that he was a leader in al Qaeda in the Arabian Peninsula, and that he was operationally involved in terrorist attacks against American interests and citizens.
JT: Do you plan on bringing before the public any proof of these charges?
MR. CARNEY: Again, the question makes us — has embedded within it assumptions about the circumstances of his death that I’m just not going to address.
JT: How on earth does it have — I really don’t understand. How does — he’s dead. You are asserting that he had operational control of the cargo plot and the Abdulmutallab plot. He’s now dead. Can you tell us, or the American people — or has a judge been shown —
MR. CARNEY: Well, again, Jake, I’m not going to go any further than what I’ve said about the circumstances of his death and —
JT: I don’t even understand how they’re tied.
MR. CARNEY: — the case against him, which, again, you’re linking. And I think that —
JT: You said that he was responsible for these things.
MR. CARNEY: Yes, but again —
JT: Is there going to be any evidence presented?
MR. CARNEY: I don’t have anything for you on that.

Attorney General Eric Holder’s appearance at Northwestern on Monday, during which he explained the exact circumstances under which the president can order the killing of just about anyone the president wants to kill, was not promising. The criteria for when a president can unilaterally decide to kill somebody is completely full of holes, regardless of what the government’s pet lawyers say. And this…

“This is an indicator of our times,” Holder said, “not a departure from our laws and our values.”

…is a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo. This policy is a vast departure from our laws and an interplanetary probe away from our values. The president should not have this power because the Constitution, which was written by smarter people than, say, Benjamin Wittes, knew full and goddamn well why the president shouldn’t have this power. If you give the president the power to kill without due process, or without demonstrable probable cause, he inevitably will do so. And, as a lot of us asked during the Bush years, if you give this power to President George Bush, will you also give it to President Hillary Clinton and, if you give this power to President Barack Obama, will you also give it to President Rick Santorum?

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c) Also on March 5, an official ACLU statement was released, and read as follows:

“While the speech is a gesture towards additional transparency, it is ultimately a defense of the government’s chillingly broad claimed authority to conduct targeted killings of civilians, including American citizens, far from any battlefield without judicial review or public scrutiny,” said Hina Shamsi, director of the American Civil Liberties Union’s National Security Project. “Few things are as dangerous to American liberty as the proposition that the government should be able to kill citizens anywhere in the world on the basis of legal standards and evidence that are never submitted to a court, either before or after the fact. Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power.”

d) On March 6, Stephen Colbert summarized Holder’s argument this way: “Due process just means there is a process that you do.”

Brennan and other officials interviewed by the Times and Newsweek said that Obama had enormous faith in himself. It would be more responsible, though, if he had less—if he thought that he was no better than any other President we’ve had or ever will. The point isn’t just the task, or burden, he takes on, but the machine he has built for his successors to use. Perhaps, just to suggest a range, he could picture each of the Republican contenders from this past season being walked through the process, told how it works, shown some of those video clips with tiny people and big explosions, and taking it for a test drive. Never mind whether Obama, in particular, sighs or loses sleeps or tosses a coin when he chooses a target: What would it mean for a bad, or craven, or simply carelessly accommodating President to do so? In the end we are not really being asked to trust Obama, or his niceness, but the office of the Presidency. Do we?

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7) On July 18, the ACLU and the Center for Constitutional Rights filed a wrongful death lawsuit on behalf of al-Awlaki and two other American citizens individuals killed by drone strikes: al-Awlaki’s son, Abdulrahman, and Samir Khan. Abdulrahman, who was 16 at the time of his death, was killed in October, was killed in October, 2011. Khan was killed in the strike that killed al-Awlaki.

On July 20, Andrew Cohen of The Atlanticasked the following regarding the lawsuits:

So America today summarily kills citizens it believes are terrorists who are fomenting violence. And it provides citizens charged domestically with actual violence with a lawyer and a trial and appellate rights. As the drone program rolls on, as “targeted killing” becomes more fundamentally a part of the military’s arsenal, you can almost hear the question posed from sea to shining sea: if we can whack a citizen like Al-Aulaqi without so much as a moment’s notice, then why do we have to give so much due process to killers like Timothy McVeigh or Ted Kaczynski?

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8) Members of Congress are now demanding to see pertinent DOJ legal memos authorizing the actions. As reported by Adam Serwer of Mother Jones on July 31, 2012:

Congress is finally standing up to President Barack Obama on targeted killing. Almost a year after three American citizens were killed in US drone strikes, legislators are pushing the administration to explain why it believes it’s legal to kill American terror suspects overseas.

Congress is considering two measures that would compel the Obama administration to show members of Congress what Sen. Chuck Grassley (R-Iowa) calls Obama’s “license to kill”: internal memos outlining the legal justification for killing Americans overseas without charge or trial. Legislators have been asking administration officials to release the documents for nearly a year, raising the issue multiple times in hearings and letters. But the new proposals, including one from Sen. John Cornyn (R-Texas) first flagged by blogger Marcy Wheeler and another in a separate intelligence bill, aren’t requests—they would mandate disclosure. That shift shows both Republicans and Democrats are growing impatient with the lack of transparency on targeted killings.

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9) On September 4, Ben Swann, a reporter for Fox19 in Toledo, Ohio questioned President Obama regarding the legality of both the “kill list” his administration maintains and the constitutionality of the Awlaki killing.

“How do you as president, or any president for that matter, regardless of party of person, utilize that power to assassinate even U.S. citizens?”

“Well first of all, you’re basing this on reports in the news that have never been confirmed by me,” Obama replied, “and I don’t talk about our national security decisions in that way.”

In a post-interview analysis of the exchange, Swann challenged this response, noting that the “kill list” was “leaked by the administration.” Swann referenced the aforementioned New York Timesarticle authored by Jo Becker and Scott Shane, which quoted both William M. Daley, the president’s former Chief of Staff, and former director of national intelligence Dennis Blair. In that article, both Blair and Daley openly discussed drone strikes against a list of alleged terrorism targets.

“So on that first point, the president acted like this is something secretive, that he’s never commented on,” Swann concluded. “But it is clear that members of his administration have no problem talking about the kill list to reporters – maybe because those reporters have helped to frame the president as tough on terror.”

The segment continued. “More broadly though,” Obama said, “our goal has been to focus on Al Qaeda, to focus narrowly on those who would pose an imminent threat to the United States of America, and that’s why it’s not just Bin Laden but a whole tier of Al Qaeda leadership has been taken off the field, and that’s part of what has allowed us to now begin to transition out of Afghanistan, to begin to bring our troops home.”

Swann returned to camera. “Again, what the president said here misses at least one important point. The president’s war with Al Qaeda has gone far from the borders of Afghanistan to nations like Yemen. It was in Yemen where President Obama ordered the death of Anwar al-Awlaki, who as I mentioned to the president was a U.S. citizen, and yet was never afforded trial…In addition to killing him, the president also ordered a drone strike that killed al-Awlaki’s 16-year-old son, Abdulrahman al-Awlaki. That 16-year-old, also a U.S. citizen, born in Denver, Colorado. So for the president to make the argument that killing those U.S. citizens without due process in Yemen means the end to the Afghanistan war, that’s simply disingenuous.”

“A constitutional lawyer, turned president,” Swann said in his concluding remarks, “using a power that violates the most basic principle in the Bill of Rights, leaking his use of it when it’s politically expedient, then claiming it can’t be discussed when it’s not.”

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10) Questions have been raised concerning the accuracy of Holder’s claim that capturing aw-Awlaki was not feasible.

It would be difficult to list all of the ways in which Holder’s arguments are disturbing. Overall, the large-scale targeted killing of non-Americans affiliated with Al Qaeda during the Obama Administration’s first term raises many questions about legality and transparency. The more recent…reporting, however, calls attention to one area, infrequently discussed, where it seems clear that the Obama Administration has driven right through a constitutional stop sign. This involves the second of Holder’s three conditions for killing a U.S. citizen who has joined Al Qaeda and is actively planning to kill Americans—that is, “capture is not feasible.”

Glenn Greenwald, has also argued that Holder’s implication that al-Awlaki could not have been captured is doubtful:

Holder’s attempt to justify these assassinations on the ground that “capture is not feasible” achieves nothing. For one, the U.S. never even bothered to indict Awlaki so that he could voluntarily turn himself in or answer the charges (though at one point, long after they first ordered him killed, they “considered” indicting him); instead, they simply killed him without demonstrating there was any evidence to support these accusations. What justifies that? Additionally, the fact that the Government is unable to apprehend and try a criminal does not justify his murder; absent some violent resistance upon capture, the government is not free to simply go around murdering fugitives who have been convicted of nothing. Moreover, that Awlaki could not have been captured in a country where the government is little more than an American client is dubious at best; if the U.S. could locate and enter the home of Osama bin Laden without the cooperation of the Pakistani government, why could it not do the same for Awlaki in Yemen?

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11) On June 15, 2012, Wiredreported on the C.I.A.’s continued refusal to officially acknowledge the existence of an American drone program, as well as legal efforts to force greater disclosure.

The Central Intelligence Agency continues to refuse to confirm or deny the covert military use of drones to kill suspected terrorists overseas, despite President Barack Obama’s and even a former CIA director’s admission of the agency’s targeted killing program.

Despite numerous public comments on the CIA’s drone attacks in far-flung locales such as Yemen from various government officials, including former CIA Director Leon Panetta and President Obama, the CIA is taking the position in court that it would have to eliminate you with one of its drones if it acknowledged the program.

So on Wednesday, the American Civil Liberties Union asked a federal appeals court to expedite a hearing (.pdf) on its Freedom of Information Act request seeking details of the drone program. Hours later, the US Court of Appeals for the District of Columbia Circuit set a September 20 oral argument. (.pdf)…
The FOIA litigation…dates to 2010, when the ACLU sued in federal court seeking records concerning the legal basis for carrying out targeted drone killings; any restrictions on those who may be targeted; any civilian casualties; any geographic limits on the program; the number of targeted killings that the agency has carried out; and the training, supervision, oversight, or discipline of drone operators.

As this report suggests, the ACLU has actively pursued information concerning the U.S. military’s use of drones. The organization has also repeatedly challenged the legality of their usage.

…the government to disclose the legal basis for its use of predator drones to conduct “targeted killings” overseas. In particular, the ACLU seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killings.

The FOIA request was filed with the Department of Defense, the Department of Justice (including the Office of Legal Counsel), the Department of State and the CIA. The Departments of Defense, Justice, and State responded by releasing some records and withholding others. The CIA denied the request by refusing to confirm or deny whether the CIA drone strike program even exists.

In March, 2010, the ACLU reported that a letter it received from the DoD stated the following:

The Department of Defense (DOD) has confirmed that it does not compile statistics about the total number of civilians that have been killed by its unmanned drone aircraft. The DOD disclosed this information in a letter in response to a Freedom of Information Act (FOIA) lawsuit filed by the American Civil Liberties Union demanding that the government disclose the legal basis for its use of unmanned drones to conduct targeted killings overseas.

The ACLU lawsuit asks for information on when, where and against whom drone strikes can be authorized, the number and rate of civilian casualties and other basic information essential for assessing the wisdom and legality of using armed drones to conduct targeted killings.

According to the DOD, the military’s estimates of civilian casualties do not distinguish between deaths caused by remote-controlled drones and those caused by other aircraft. While each drone strike appears to be subject to an individual assessment after the fact, there is no total number of casualties compiled. Moreover, information contained in the individual assessments is classified – making it impossible for the public to learn how many civilians have been killed overall.

The ACLU challenged the C.I.A.’s refusal to reveal information, filing a lawsuit in June, 2010 which argued “that the CIA’s response was not lawful because the CIA Director and other officials had already publicly acknowledged the existence of the CIA’s drone program.” The case is ongoing.

In October, 2011, the ACLU filed a FOIA request “seeking information about the targeted killings of three U.S. citizens in Yemen: Anwar al-Awlaki; his 16-year-old son, Abdulrahman al-Awlaki; and Samir Khan.” As the organization explained,

The request seeks disclosure of the legal memorandum written by the Department of Justice Office of Legal Counsel that provided justifications for the targeted killing of Anwar al-Awlaki, as well as records describing the factual basis for the killings of all three Americans.

No response was received, and the ACLU sued in February, 2012. In response, on June 21, 2012, the administration filed a brief stating that the government was engaged in “significant efforts to be open and transparent on the one hand, and to protect against the release of information harmful to to national security on the other hand.” The brief also stated that, “Whether or not the CIA has the authority to be, or is in fact, directly involved in targeted lethal operations remains classified.”

On September 13, 2012, the ACLU and the Center for Constitutional Rights (CCR) filed a lawsuit “challenging the government’s targeted killing of three U.S. citizens in drone strikes far from any armed conflict zone.” As the ACLU reported:

In Al-Aulaqi v. Panetta (Al-Awlaki v. Panetta) the groups charge that the U.S. government’s killings of U.S. citizens Anwar Al-Aulaqi, Samir Khan, and 16-year-old Abdulrahman Al-Aulaqi in Yemen last year violated the Constitution’s fundamental guarantee against the deprivation of life without due process of law.

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12) In July, 2012, Esquire published a long and detailed article by Tom Junod entitled “The Lethal Presidency of Barack Obama.” The piece examined the issues, both moral legal, of America’s use of drones and targeted killings, largely within the context of the killings of Anwar al-Awlaki and Abdulrahman al-Awlaki. For some of his concluding thoughts, Junod wrote:

What you want us to know about the process — the review process, the targeting process — is essentially what you want us to know about yourself, Mr. President. It is moral and responsible. It is rigorous and reflective. It is technocratic, but it encourages people to ask hard questions and engage in passionate debate. When it makes a mistake, it learns from its mistakes, and gets better. It is human and flawed, but it tries really hard. It starts with meetings involving as many as one hundred people from different agencies and ends with the approval of targets by John Brennan and the approval of operations by you. Your responsibility is full and final, and in the end you emerge as agonized and humane, heroic and all-powerful.

You have accepted no judicial review of any of your decisions. Your administration has insisted that there is no role for the courts in the making of war, and has cited both tradition and precedent to back up its position. You have accepted, however, what Eric Holder calls the “robust oversight” of Congress…

In a speech he gave in March, Attorney General Eric Holder articulated the central doctrine of the Lethal Presidency: “The Constitution guarantees due process, not judicial process.” Of course, he is speaking of American citizens. The Constitution guarantees combatants from other countries nothing. And yet we still give them something like due process; we still give them the meetings involving one hundred members of the executive branch, we still give them the impassioned interagency debate, we still give them the input of Justice and State, we still give them John Brennan, we still give them you, Mr. President, and your moral prestige. And if they are citizens, well, then, there is, in the words of John Brennan, “additional review” — additional review that must surely constitute due process.

In the history of war, no enemy has been given this kind of consideration. The people we’re targeting aren’t soldiers; they’re plotters — murderers — who deliberate over the deaths of innocents. And in response we give them a review process that deliberates on how to spare innocents and kill only the guilty; that is self-critical; that works constantly to eliminate “mistakes”; that aspires to a kind of perfection and comes so close to achieving it that a year ago John Brennan could announce in a speech that the program operating in Pakistan had been operating since the summer of 2010 without “a single collateral death.”

No, there is no court, and there is no judge. But instead of a court there is the White House Situation Room, and instead of a judge there is you — the Lethal President who has worked tirelessly to earn what is the hallmark of the Lethal Presidency:

Moral confidence in the act of killing.

But Junod ultimately argued that doubt and uncertainly still pervaded a process Obama had worked hard to perfect:

You were proud that you were able to kill Anwar al-Awlaki. You were proud because his death marked “another significant milestone in the broader effort to defeat Al Qaeda and its affiliates”; because by killing him you almost certainly saved American lives; and because you obeyed the law.

This is the consuming irony of the Lethal Presidency. You have become the Lethal President because you are also the Rule-of-Law President. You have been able to kill our enemies because you have forsworn waterboarding them. You have become the first president to execute without trial an American citizen because you hired David Barron and Martin Lederman — the constitutional lawyers renowned for their blistering attacks on the legal memos that justified the Bush administration’s use of torture — to write the legal memos that justified the execution without trial of an American citizen…

There have been thousands killed as the result of direct orders of the Lethal Presidency. How can each death be said to be the end product of rigorous review when there are so many of them? And most importantly, how can the care given to the inclusion of individual terrorists on CIA and DOD kill lists be extended to those who are killed without the administration ever knowing their names — those who are killed in “signature strikes,” based on data, rather than “personality strikes,” based on human intelligence?

The simple answer: It can’t, especially when, in the words of a former senior CIA official, “the increase in signature strikes is what accounts for most of the increased activity.” The Lethal Presidency is using intelligence to put people to death, but when the official familiar with targeting is asked about the quality of the information, there is a long pause before the answer.

“I can’t answer that question,” the official finally says. “You get information from intelligence channels and you don’t know how reliable it is or who the source was. The intelligence services have criteria, but most of the time the people making the decision have no idea what those criteria are. Some people [targets] you see over and over again. But when someone turns up for the first time, it’s harder to have confidence in that information.”

It is only human to have faith in the “human intelligence” generated by the agents, operatives, and assets of the CIA. But that’s the point: What’s human is always only human, and often wrong. America invaded Iraq on the pretext of intelligence that was fallacious if not dishonest. It confidently asserted that the detainees in Guantánamo were the “worst of the worst” and left them to the devices of CIA interrogators before admitting that hundreds were hapless victims of circumstance and letting them go. You, Mr. President, do not have a Guantánamo. But you are making the same characterization of those you target that the Bush administration made of those it detained, based on the same sources. The difference is that all your sentences are final, and you will never let anybody go. To put it as simply as possible: Six hundred men have been released uncharged from Guantánamo since its inception, which amounts to an admission of a terrible mistake. What if they had never even been detained? What if, under the precepts of the Lethal Presidency, they had simply been killed?

For all its respect for the law, the Obama administration has been legally innovative in the cause of killing. It has called for the definition of an “imminent threat” to be broadened and for the definition of “collateral damage” to be narrowed. An imminent threat used to be someone who represented a clear and present danger. Now it is someone who appears dangerous. Collateral damage used to be anyone killed who was not targeted. Now the term “collateral damage” applies only to women and children. “My understanding is that able-bodied males of military age are considered fair game,” says the former administration official, “if they’re in the proximity of a known militant.”

Abdulrahman al-Awlaki was the son of Anwar al-Awlaki. Did that make him an imminent threat? He was sixteen years old, able-bodied. Did that make him fair game? To his family, he was still a child. Does that make him collateral damage? He was an American citizen. Does that mean that he should have been given due process? Should his citizenship have offered him a degree of protection not enjoyed by the other boys who were with him on the night of October 14, 2011? They were all able-bodied, after all. They were all teenagers. They all had the potential to be dangerous someday.

On that night, though, they were all celebrating Abdulrahman’s last night in his ancestral village near the Arabian Sea. He had been waiting for Yemen’s political unrest to die down before heading home. Now the way seemed clear, the roads less perilous, and he was saying goodbye to the friends he’d made. There were six or seven of them, along with a seventeen-year-old cousin. It was a night lit by a bright moon, and they were sitting around a fire. They were cooking and eating. It was initially reported that an Al Qaeda leader named Ibrahim al-Banna was among those killed, but then it was reported that al-Banna is still alive to this day. It was also reported that Abdulrahman al-Awlaki was a twenty-one-year-old militant, until his grandfather released his birth certificate. There is the fog of war, and then there is the deeper fog of the Lethal Presidency. What is certain is only this: that a drone crossed the moonlit sky, and when the sun rose the next morning, the relatives of Abdulrahman al-Awlaki gathered his remains — along with those of his cousin and some teenaged boys — so that they could give a Muslim funeral to an American boy.

This is what Senator Carl Levin, who receives regular briefings on “clandestine activities” as chairman of the Senate Armed Services Committee, says about the death of Abdulrahman al-Awlaki: “My understanding is that there was adequate justification.” How? “It was justified by the presence of a high-value target.”…

You have never spoken of Abdulrahman al-Awlaki. Though you probably approved the strike that killed him, you have never mentioned his name in public. Though he was an American citizen killed by an American drone, you have kept the circumstances of his death secret. Though what we know about the circumstances of his death casts doubt on most of the claims your administration makes about both the rigor of the process and the precision of the program, there has been no call in Congress for an investigation or a hearing. You have been free to keep the American people safe by expanding the Lethal Presidency — by approving the expanded use of signature strikes in Yemen and by defying an edict of the Pakistani parliament and continuing drone strikes in Pakistan. You have even begun thinking of using the Lethal Presidency as an example for other countries that want Lethal Presidencies of their own.

“Other nations also possess this technology,” said John Brennan in his most recent speech. “Many more nations are seeking it, and more will succeed in acquiring it. President Obama and those of us on his national-security team are very mindful that as our nation uses this technology, we are establishing precedents that other nations may follow, and not all of them will be nations that share our interests or the premium we put on protecting human life, including innocent civilians.”

Of course, the danger of the Lethal Presidency is that the precedent you establish is hardly ever the precedent you think you are establishing, and whenever you seem to be describing a program that is limited and temporary, you are really describing a program that is expansive and permanent. You are a very controlled man, and as Lethal President, it’s natural for you to think that you can control the Lethal Presidency. It’s even natural for you to think that you can control the Lethal Presidencies of other countries, simply by the power of your example. But the Lethal Presidency incorporates not just drone technology but a way of thinking about drone technology, and this way of thinking will be your ultimate export. You have anticipated the problem of proliferation. But an arms race involving drones would be very different from an arms race involving nuclear arms, because the message that spread with nuclear arms was that these weapons must never be used. The message that you are spreading with drones is that they must be — that using them amounts to nothing less than our moral duty.

The former official in your administration — the one familiar with targeting — has suggested a question intended to encapsulate the danger represented by the expansive nature of the Lethal Presidency:

“Ask the administration if the president himself is targetable.” But here’s something simpler, and more human. You have made sure that you will not be the only Lethal President. You have made sure that your successor in the White House will also be a Lethal President, as well as someone somewhere else in the world.

What if the next Lethal President is not as good and as honorable as you? What if he is actually cruel or bloodthirsty?

What if he turns out to be — like you, Mr. President — just a man?

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Shortly after the article’s publication, Junod wrote a blog post describing a phone call he unexpectedly received “from a person with intimate knowledge of the executive counter-terrorism policies of the Obama administration.”

“You know, most of the people reading this piece are saying that you think that this policy is a bad thing,” he said. “You don’t say that at all. There’s just a current of unease running through the piece that makes people come to that conclusion.” In the course of our conversation, I came to believe that he understood that unease because he shared it.

He was calling, he said, to “help you think through some of the issues you raised.” He was appreciative of what I regard as the moral contradictions of the Lethal Presidency, not least of which is the contradiction between the administration’s stated commitment to transparency and its consuming commitment to conduct lethal operations in secret. “You seem to think that more transparency would help rectify some of the moral problems,” he said, and then told me that “the political people in the administration, including the president himself,” would probably agree with me.
And then he proceeded to explain why transparency was a goal difficult, if not impossible, to achieve, even when a simple acknowledgment would go a long way toward expiating the sin of killing an innocent American teenager in the course of a counterterrorism strike.

State secrecy, the man on the phone said, exists for a reason, and it’s generally not the reason that the Glenn Greenwalds of the world think it is — it’s not to cover up wrongdoing. It’s to protect two essential things: the sources and methods of the intelligence community, and something called “the requirement of non-acknowledgement.”

I’d heard the sources-and-methods argument before, of course — it’s the argument brought to bear every time the CIA is called upon to reveal its workings. He said that the action that killed Abdulrahman al-Awlaki, if such an action ever took place, would have been predicated on sources and methods that have to remain secret. It might involve human or electronic sourcing that can never be revealed.

But nobody’s asking the Administration to reveal sources and methods here, I said. Nobody’s asking for anything but the ability to hold the administration accountable when it kills an American citizen, in a manner that is absent of due process, especially when the killing is apparently a mistake, as it was in the case of Abdulrahman al-Awlaki. Surely, there’s a way to challenge the inevitable sense of license that attends an administration carrying out killings in secret without revealing intelligence sources and methods.

But that’s the thing, he said: Secrecy isn’t always the main driver here. Sometimes diplomacy is. “The requirement of non-acknowledgement” is. It’s very common for cooperation and consent to be drawn from other countries only if you don’t acknowledge something. They say, You can do this, but you can never acknowledge that you’re involved.

So there are deals — deals that have already been made. And part of the deal is that you don’t acknowledge the deal. If you do, then the country you made the deal with is obligated to do react, because now there’s been a violation of sovereignty. The problem is that there are a lot of these kinds of deals, because they are so easy to make. They’re a little like allowing a source to go off the record in journalism. If the source asks, Can I go off the record?, you’ll say, Of course you can, because you want the source to talk. It’s the same in statecraft. You make the deal because you want there to be a deal….

It might sound trivial, he said. It might sound as though large principles are being sacrificed to the sensitivities of small nations. But everyone in the political branches considers non-acknowledgement to be the lifeblood of diplomacy…

The issues we are facing when we consider the implications of the Lethal Presidency have always seemed to me the largest possible. The power that the administration has claimed and strenuously defended — the power to identify and kill the nation’s enemies, from a remove of secrecy — is the power of kings, and it’s one of the powers the elemental principle of due process exists to address. And so, yes, I have to admit that this one man’s informed explanation sounded trivial. I have to admit that it sounded as if large principles are being sacrificed not only to small nations but also to smaller principles. I have to admit that it sounded antique and arcane, as though the administration had decided to put aside the Constitution because France had decided to revoke the Edict of Nantes. But it was the first explanation I’d heard for why this administration hasn’t acknowledged the death of Abdulrahman al-Awlaki that was an alternative to a chilly silence, and I thanked him for the kindness of his call.

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Glenn Greenwald critiqued the arguments put forward by the official, which he found to be unconvincing. As he wrote:

First, this defense of total secrecy is intellectually corrupted because it only counts one side of the equation. Specifically, this “non-acknowledgment” argument recognizes the ostensible value that comes from executing the policy in question (namely, executing people whom President Obama decides should be dead), while completely ignoring the costs of the policy. The costs should be clear to any rational person.

Those costs come from vesting in the President what is literally the most extremist power a political ruler can seize, the true hallmark of authortarianism: namely, the power to order even his own citizens executed without a whiff of due process or accountability and in total secrecy — far from any battlefield…

Second, this “no-acknowledgment” excuse is tantamount to a license to lie to the citizenry about the most vital of all matters: war…

Anyone who defends this “no acknowledgment” justification is defending the right of the President to order military action in foreign countries without the knowledge of the American people, or worse, by allowing them to be actively misled about who is doing the bombing…

Third, this “no-acknowledgment” claim cannot be sustained factually in the case of Obama’s assassination of the American teenager in Yemen, or the killing of numerous Pakistani teeangers. After substantial pressure, Attorney General Eric Holder issued a public defense of the Awlaki assassination in Yemen, and John Brennan did the same for strikes in Pakistan. Obama officials, and the President himself, have repeatedly boasted about them…

So even if you agree with the “no-acknowledgment” rationale in general as an excuse to justify secrecy, it’s inapplicable here. When it comes to presidential assassinations, the only thing this secrecy achieves is to prevent discovery of bad acts and “mistakes,” and more important, to bar accountability for them on the part of Obama officials…

Fourth, this anonymous Obama defender claims that “State secrecy . . . . exists for a reason, and it’s generally not the reason that the Glenn Greenwalds of the world think it is — it’s not to cover up wrongdoing.” This I find astounding: that someone would actually claim that rampant government secrecy is not designed to conceal wrongdoing…

…[O]nly a religious-type faith in the Goodness of Barack Obama and his officials, or willful ignorance, or both, would permit someone to believe that this rampant secrecy has nothing to do with an attempt to conceal wrongdoing, ineptitude and even corruption.

Topic 3: What legal precedent was set by the indefinite detention provision of the 2011 Defense Authorization Act? (Return to Top)

Relevant Facts and Criticism:

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1) On December 31, 2011, President Obama signed the National Defense Authorization Act. Section 1021 of the legislation permitted the detention of any “person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” The legislation permitted their detention “without trial until the end of hostilities.”

The most disputed provision would require the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies. The provision would exempt American citizens, but would otherwise extend to arrests on United States soil. The executive branch could issue a waiver and keep such a prisoner in the civilian system.

A related provision would create a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial. It contains no exception for American citizens. It is intended to bolster the authorization to use military force against the perpetrators of the terrorist attacks of Sept. 11, 2001, which lawmakers enacted a decade ago.

2) Obama had previously said that he was considering vetoing the legislation due to the inclusion of this provision. However, he announced support for the bill after its language was changed. As the Huffington Postreported:

…Congress added provisions that took the ultimate authority to detain suspects from the military’s hands and gave it to the president. Congress also clarified that civilian law enforcement agencies — such as the FBI — would still have authority to investigate terrorism and added a provision that asserts nothing in the detention measures changes current law regarding U.S. citizens.

It is important to note the White House’s objection to the provision was motivated at least in part by what the administration argued would be its imposition on executive authority. As Charlie Savage of the New York Timesreported,

The administration had threatened to veto versions of the National Defense Authorization Act of 2012 passed by the House and the Senate, arguing that provisions would open the door for the military to perform policing functions inside the United States, and that they would infringe on executive branch powers.

But the White House said in a statement that adjustments made by a House-Senate conference committee had sufficiently addressed its concerns.

“As a result of these changes, we have concluded that the language does not challenge or constrain the president’s ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people, and the president’s senior advisors will not recommend a veto,” it said.

I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists…I want to clarify that my administration will not authorize the indefinite military detention without trial of American citizens,” Obama wrote. “Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My administration will interpret section 1021 [of the bill] in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

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4) The question of what activities would mean that an individual had “substantially supported” Al Qaeda or one of its allies was also raised. In January of 2012, journalist Christopher Hedges announced that he was suing to challenge the constitutionality of the legislation, and focused largely on this issue. Other parties to the suit included Noam Chomsky and Daniel Ellsberg. As Hedges wrote:

The act authorizes the military in Title X, Subtitle D, entitled “Counter-Terrorism,” for the first time in more than 200 years, to carry out domestic policing. With this bill, which will take effect March 3, the military can indefinitely detain without trial any U.S. citizen deemed to be a terrorist or an accessory to terrorism. And suspects can be shipped by the military to our offshore penal colony in Guantanamo Bay and kept there until “the end of hostilities.” It is a catastrophic blow to civil liberties.

I spent many years in countries where the military had the power to arrest and detain citizens without charge. I have been in some of these jails. I have friends and colleagues who have “disappeared” into military gulags. I know the consequences of granting sweeping and unrestricted policing power to the armed forces of any nation. And while my battle may be quixotic, it is one that has to be fought if we are to have any hope of pulling this country back from corporate fascism.

Section 1031 of the bill defines a “covered person”—one subject to detention—as “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

The bill, however, does not define the terms “substantially supported,” “directly supported” or “associated forces.”

I met regularly with leaders of Hamas and Islamic Jihad in Gaza. I used to visit Palestine Liberation Organization leaders, including Yasser Arafat and Abu Jihad, in Tunis when they were branded international terrorists. I have spent time with the Revolutionary Guard in Iran and was in northern Iraq and southeastern Turkey with fighters from the Kurdistan Workers’ Party. All these entities were or are labeled as terrorist organizations by the U.S. government. What would this bill have meant if it had been in place when I and other Americans traveled in the 1980s with armed units of the Sandinistas in Nicaragua or the Farabundo Marti National Liberation Front guerrillas in El Salvador? What would it have meant for those of us who were with the southern insurgents during the civil war in Yemen or the rebels in the southern Sudan? I have had dinner more times than I can count with people whom this country brands as terrorists. But that does not make me one…

The supine and gutless Democratic Party, which would have feigned outrage if George W. Bush had put this into law, appears willing, once again, to grant Obama a pass. But I won’t. What he has done is unforgivable, unconstitutional and exceedingly dangerous. The threat and reach of al-Qaida—which I spent a year covering for The New York Times in Europe and the Middle East—are marginal, despite the attacks of 9/11. The terrorist group poses no existential threat to the nation. It has been so disrupted and broken that it can barely function. Osama bin Laden was gunned down by commandos and his body dumped into the sea. Even the Pentagon says the organization is crippled. So why, a decade after the start of the so-called war on terror, do these draconian measures need to be implemented? Why do U.S. citizens now need to be specifically singled out for military detention and denial of due process when under the 2001 Authorization for Use of Military Force the president can apparently find the legal cover to serve as judge, jury and executioner to assassinate U.S. citizens, as he did in the killing of the cleric Anwar al-Awlaki in Yemen? Why is this bill necessary when the government routinely ignores our Fifth Amendment rights—“No person shall be deprived of life without due process of law”—as well as our First Amendment right of free speech? How much more power do they need to fight “terrorism”?

5) By February, nine states had, as RTreported, “introduced bills that aim to adjust or repeal the detainment provisions of the NDAA.”

6) In early May, U.S. Representatives Adam Smith (D-Wash) and Justin Amash (R-Mich) offered an amendment to the 2012 version of the legislation which would, as Mother Jonesreported, “guarantee that no one—citizen or otherwise—could be denied a fair trial if captured in the United States.”

7) Shortly after, federal district judge Katherine Forrest of New York, ruled in response to the suit that the law’s detention provision was unconstitutional, preventing its use. As the Los Angeles Times reported,

In her decision published Wednesday, Forrest, in the Southern District of New York, ruled that Section 1021 of NDAA was facially unconstitutional — a rare finding — because of the potential that it could violate the 1st Amendment.

“Plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment,” she wrote, addressing the constitutional challenge…

Judge Forrest also found that the language of Section 1021 was too vague, meaning it was too hard to know when one may or may not be subject to detention…

The suit demands that Congress cut or reform this section of the law, which allows the U.S. military to indefinitely detain without charges anyone — including U.S. citizens — who may have “substantially supported” terrorists or their “associated forces,” without defining what those terms mean. President Obama signed the bill on Dec 31, 2011, with a signing statement saying that the law was redundant of powers already provided to the government under the 2001 Authorization for Use of Military Force (passed after 9/11), and that these powers would not be used against U.S. citizens. The next administration may decide differently, however.

The plaintiffs made their cases very clear. Hedges had said that he could no longer interview some of his contacts in the Middle East because associating with these individuals might subject him to indefinite detention. Similarly, one of the founders of Occupy London, Kai Wargalla, discovered that the city of London Police Department had categorized her organization as “domestic terrorism/extremism” — among a list of groups that included Al Qaeda. Along with her work supporting Wikileaks, she said she felt primed for a visit from the rendition patrol.

Government attorneys had challenged the issue that any of these people had standing, but Forrest ruled that they did.

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8) In September, 2012, Judge Forrest made her ruling permanent. As reported by Bloomberg:

A federal judge permanently blocked enforcement of a U.S. law that opponents claim may subject them to indefinite military detention for activities including news reporting and political activism.

U.S. District Judge Katherine Forrest in Manhattan today ruled that the law, passed as part of the National Defense Authorization Act for 2012, is unconstitutionally vague.

“Here, the stakes get no higher: indefinite military detention — potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever,” Forrest wrote in a 112-page opinion today. “The Constitution requires specificity — and that specificity is absent” from the law.

Forrest made permanent a preliminary injunction against the law that she ordered in May, ruling today that the statute violates rights guaranteed by the First, Fifth and 14th Amendments to the U.S. Constitution. The government is appealing Forrest’s May order…

The plaintiffs claim the law is vague and can be read to authorize their detention based on speech and associations that are protected by the Constitution.

Forrest today said that Hedges and four other plaintiffs “testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention” under the law.
Forrest said that Justice Department lawyers failed to adequately explain terms in the legislation that she said are ambiguous.

“Could a news article taken as favorable to the Taliban, and garnering support for the Taliban, be considered to have ‘substantially supported’ the Taliban?” Forrest wrote. “How about a YouTube video?”

In her opinion, Forrest invited the U.S. Congress to consider amending or repealing Section 1021 to avoid conflicting with the Constitution.

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9) On September 17, the administration appealed the ruling, and a federal appeals judge ruled that the law could be kept in effect until September 28, when it would face another hearing.

The Defense spending bill seeks to throw away time-tested, effective tools for countering terrorism and instead make the US military the world’s jailer. Preventing the FBI, local police, and federal courts from working on terrorism cases will interfere with the most effective means of combating terrorism and obtaining actionable intelligence.

His abandonment of the promised veto of the military bill that threatened to unleash the military in the homeland to capture, and detain indefinitely without charges, anyone suspected of being a member of al Qaeda or of “substantially supporting” them is another sign that his campaign pledge to be vigilant about civil liberties in the war on terror was a lie. Yes, a radical part has been removed – and the civilian criminal law system will not be actually prevented by law from being used to capture and prosecute al Qaeda suspects within the US. So complete militarization of domestic law enforcement – when anyone in authority screams the word “enemy combatant” – has been avoided. But not because Obama opposed the idea in principle, but because he opposed its encroachment on executive power.

Mr. Obama refused to entertain any investigation of the abuses of power under his predecessor, and he has been far too willing to adopt Mr. Bush’s extravagant claims of national secrets to prevent any courthouse accountability for those abuses. This week, he is poised to sign into law terrible new measures that will make indefinite detention and military trials a permanent part of American law.

The measures, contained in the annual military budget bill, will strip the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists and hand it off to the military, which has made clear that it doesn’t want the job. The legislation could also give future presidents the authority to throw American citizens into prison for life without charges or a trial. The bill, championed by Republicans in the House and Senate, was attached to the military budget bill to make it harder for Mr. Obama to veto it…

This is a complete political cave-in, one that reinforces the impression of a fumbling presidency. To start with, this bill was utterly unnecessary. Civilian prosecutors and federal courts have jailed hundreds of convicted terrorists, while the tribunals have convicted a half-dozen…
The bill has so many other objectionable aspects that we can’t go into them all. Among the worst: It leaves open the possibility of subjecting American citizens to military detention and trial by a military court. It will make it impossible to shut the prison in Guantánamo Bay, Cuba. And it includes an unneeded expansion of the authorization for the use of military force in Afghanistan to include indefinite detention of anyone suspected of being a member of Al Qaeda or an amorphous group of “associated forces” that could cover just about anyone arrested anywhere in the world.

4) Also on December 16, Glenn Greewald summarized the bill’s detention provision as follows:

Section 1021 of the NDAA governs, as its title says, “Authority of the Armed Forces to Detain Covered Persons Pursuant to the AUMF.” The first provision — section (a) — explicitly “affirms that the authority of the President” under the AUMF ”includes the authority for the Armed Forces of the United States to detain covered persons.” The next section, (b), defines “covered persons” — i.e., those who can be detained by the U.S. military — as “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” With regard to those “covered individuals,” this is the power vested in the President by the next section, (c):

c) DISPOSITION UNDER LAW OF WAR. – The disposition of a person under the law of war as described in subsection (a) include the following:
1) Detention under the law of war without trial until the end of hostilities authorized by the Authorization for Use of Military Force.”

It simply cannot be any clearer within the confines of the English language that this bill codifies the power of indefinite detention. It expressly empowers the President — with regard to anyone accused of the acts in section (b) – to detain them “without trial until the end of the hostilities.” That is the very definition of “indefinite detention,” and the statute could not be clearer that it vests this power. Anyone claiming this bill does not codify indefinite detention should be forced to explain how they can claim that in light of this crystal clear provision.

President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law. The statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield. The ACLU will fight worldwide detention authority wherever we can, be it in court, in Congress, or internationally.

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6) There was bi-partisan opposition to the legislation. As Adam Serwer of Mother Jonesreported in May, 2012,

The revolt against the NDAA has brought together organizations and activists that disagree on almost every other issue—tea party activists, the states’ rights Tenth Amendment Center, the American Civil Liberties Union, and Occupy Wall Street protesters. The NDAA is “waking people up to the idea that the federal government shouldn’t have this kind of power,” says Michael Boldin, the director of the Tenth Amendment Center. “We’re seeing this weird mishmosh coalition of people.” In mid-April, Boldin’s group joined a number of other conservative organizations in filing a friend-of-the-court brief in support of liberal journalist Chris Hedges’ anti-NDAA lawsuit against the Obama administration.

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7) Glenn Greenwald also objected to the administration’s appeal of Katherine Forrest’s September, 2012 ruling. As he wrote on September 18:

In response to this ruling, the Obama administration not only filed an immediate appeal, but they filed an emergency motion asking the appeals court to lift the injunction pending the appeal. Obama lawyers wrote a breathless attack on the court’s ruling, denouncing it as “vastly troubling” and claiming that it “threatens tangible and dangerous consequences in the conduct of an active military conflict” and “threatens irreparable harm to national security”.

The Obama DOJ also objected that the decision “was entered against the president as commander-in-chief in his conduct of ongoing military operations, is unprecedented and exceeded the court’s authority”: how irreverent. And they argued that the broad detention power claimed by President Obama “has been endorsed by two presidents [meaning him and George W Bush], by the [rightwing] DC circuit in habeas litigation brought by Guantánamo detainees, and by the Congress in Section 1021(b)(2).”…

…First, the Obama administration’s unhinged claim that Judge Forrest’s ruling imperils national security gives the lie to the central excuse for the NDAA: namely, that it does not expand the president’s detention powers beyond what is already vested by the 2001 Authorization to Use Military Force (AUMF). Judge Forrest’s ruling leaves the 2001 AUMF in place and did not purport to nullify any prior decisions applying it. Therefore, if the NDAA does nothing that the 2001 AUMF did not already do – as Obama defenders relentlessly claimed to justify his signing of this odious bill – then it cannot possibly be the case that Judge Forrest’s ruling harms national security, since Obama already has all the detention power he claims he needs under the 2001 AUMF.

The reality is that the NDAA did indeed wildly expand the president’s detention powers beyond what the 2001 AUMF provided. In contrast to the 2001 AUMF – which empowered the president to act against a relatively narrow category: those “he determines planned, authorized, committed, or aided the terrorist attacks that occurred on 11 September 2001, or harbored such organizations or persons” – the NDAA empowers him to act against a much broader range of people: not only those who perpetrated 9/11, but also “associated forces”, and not only those who are members of such groups, but those who “substantially support” them.

While the Bush and Obama DOJs have long absurdly interpreted the 2001 AUMF to apply to this broader range, and while some courts have accepted that interpretation, the law itself vested no such power. The NDAA did. That is why civil liberties groups such as the ACLU denounced Obama’s signing of it so vociferously, and it is why the Obama DOJ is so horrified, obviously, by the prospect that it will be invalidated: precisely because it so drastically expands their detention power. Both the court’s ruling and the Obama DOJ’s reaction to that ruling prove that the NDAA does indeed provide the president with significantly enhanced authority of indefinite detention.

Second, to see the sorry and wretched state of liberties in the US under President Obama, let us look to Afghanistan. The US is currently attempting to turn over to the Afghan government control of the lawless prison system the US has long maintained in Bagram and other parts of that country. But that effort is running into a serious problem: namely, the US wants the prisoners to remain there in cages without charges, but the Afghans are insisting that indefinite detention violates their belief in due process. From an Associated Press article Monday headlined “Afghans reject US-favored administrative detention”:

“An Afghan judicial panel ruled Monday that administrative detention violates Afghan law, potentially thwarting a US plan to hand over Afghan detainees that American officials believe should continue to be held without a trial.

“President Hamid Karzai’s office announced in a statement that a top-level judicial panel met earlier in the day and decided that the detention of Afghan citizens without a court trial ‘has not been foreseen in Afghan laws’ and therefore could not be used.

“The US government has long held Afghans captured in operations inside the country without trial, arguing that they are enemy combatants and therefore can be detained for as long as their release might pose a danger to the international coalition …

“A US official confirmed that the transfer of detainees had paused because of the dispute.”

Is that not amazing? On the very same day that the Obama DOJ fights vigorously in US courts for the right to imprison people without charges, the Afghan government fights just as vigorously for basic due process.

Mr. Obama signed executive orders closing the detention camp at Guantánamo Bay, Cuba, within a year; ending the Central Intelligence Agency’s secret prisons; and requiring all interrogations to follow the noncoercive methods of the Army Field Manual.

“We intend to win this fight,” he said. “We are going to win it on our own terms.”

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2) In April of 2009, Obama released Bush era memos detailing which enhanced interrogation techniques had been previously judged permissible. As The Guardianreported,

Ten techniques are approved, listed as: attention grasp, walling (in which the suspect could be pushed into a wall), a facial hold, a facial slap, cramped confinement, wall standing, sleep deprivation, insects placed in a confinement box (the suspect had a fear of insects) and the waterboard. In the latter, “the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner……..produces the perception of ‘suffocation and incipient panic’.”

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3) However, extraordinary rendition was kept in place. As the Los Angeles Timesreported in February, 2009:

The CIA’s secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.

But even while dismantling these programs, President Obama left intact an equally controversial counter-terrorism tool.

Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

The Obama Administration today announced that it would keep the same position as the Bush Administration in the lawsuit Mohamed et al v Jeppesen Dataplan, Inc.

The case involves five men who claim to have been victims of extraordinary rendition — including current Guantanamo detainee Binyam Mohamed, another plaintiff in jail in Egypt, one in jail in Morocco, and two now free. They sued a San Jose Boeing subsidiary, Jeppesen Dataplan, accusing the flight-planning company of aiding the CIA in flying them to other countries and secret CIA camps where they were tortured.

A year ago the case was thrown out on the basis of national security, but today the Ninth U.S. Circuit Court of Appeals heard the appeal, brought by the ACLU.

A source inside of the Ninth U.S. District Court tells ABC News that a representative of the Justice Department stood up to say that its position hasn’t changed, that new administration stands behind arguments that previous administration made, with no ambiguity at all. The DOJ lawyer said the entire subject matter remains a state secret.

In an interview, the White House counsel, Gregory B. Craig, asserted that the administration was not embracing Mr. Bush’s approach to the world. But Mr. Craig also said President Obama intended to avoid any “shoot from the hip” and “bumper sticker slogans” approaches to deciding what to do with the counterterrorism policies he inherited.

“We are charting a new way forward, taking into account both the security of the American people and the need to obey the rule of law,” Mr. Craig said. “That is a message we would give to the civil liberties people as well as to the Bush people.”

The day before the executive orders were issued, the C.I.A.’s top lawyer, John A. Rizzo, had called the White House in a panic. The order prohibited the agency from operating detention facilities, closing once and for all the secret overseas “black sites” where interrogators had brutalized terrorist suspects.

“The way this is written, you are going to take us out of the rendition business,” Mr. Rizzo told Gregory B. Craig, Mr. Obama’s White House counsel, referring to the much-criticized practice of grabbing a terrorist suspect abroad and delivering him to another country for interrogation or trial. The problem, Mr. Rizzo explained, was that the C.I.A. sometimes held such suspects for a day or two while awaiting a flight. The order appeared to outlaw that.

Mr. Craig assured him that the new president had no intention of ending rendition — only its abuse, which could lead to American complicity in torture abroad. So a new definition of “detention facility” was inserted, excluding places used to hold people “on a short-term, transitory basis.” Problem solved — and no messy public explanation damped Mr. Obama’s celebration.

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6) A July, 2011 article in The Nation by Jeremy Scahill detailed the existence of a new U.S.-supported counterterrorism training and interrogation site in Mogadishu:

Nestled in a back corner of Mogadishu’s Aden Adde International Airport is a sprawling walled compound run by the Central Intelligence Agency. Set on the coast of the Indian Ocean, the facility looks like a small gated community, with more than a dozen buildings behind large protective walls and secured by guard towers at each of its four corners. Adjacent to the compound are eight large metal hangars, and the CIA has its own aircraft at the airport. The site, which airport officials and Somali intelligence sources say was completed four months ago, is guarded by Somali soldiers, but the Americans control access. At the facility, the CIA runs a counterterrorism training program for Somali intelligence agents and operatives aimed at building an indigenous strike force capable of snatch operations and targeted “combat” operations against members of Al Shabab, an Islamic militant group with close ties to Al Qaeda.

As part of its expanding counterterrorism program in Somalia, the CIA also uses a secret prison buried in the basement of Somalia’s National Security Agency (NSA) headquarters, where prisoners suspected of being Shabab members or of having links to the group are held. Some of the prisoners have been snatched off the streets of Kenya and rendered by plane to Mogadishu. While the underground prison is officially run by the Somali NSA, US intelligence personnel pay the salaries of intelligence agents and also directly interrogate prisoners…

The CIA presence in Mogadishu is part of Washington’s intensifying counterterrorism focus on Somalia, which includes targeted strikes by US Special Operations forces, drone attacks and expanded surveillance operations. The US agents “are here full time,” a senior Somali intelligence official told me. At times, he said, there are as many as thirty of them in Mogadishu, but he stressed that those working with the Somali NSA do not conduct operations; rather, they advise and train Somali agents.

According to former detainees, the underground prison, which is staffed by Somali guards, consists of a long corridor lined with filthy small cells infested with bedbugs and mosquitoes. One said that when he arrived in February, he saw two white men wearing military boots, combat trousers, gray tucked-in shirts and black sunglasses. The former prisoners described the cells as windowless and the air thick, moist and disgusting. Prisoners, they said, are not allowed outside. Many have developed rashes and scratch themselves incessantly. Some have been detained for a year or more. According to one former prisoner, inmates who had been there for long periods would pace around constantly, while others leaned against walls rocking.

On the second day of his presidency, Barack Obama issued an executive order that on its face terminated the CIA’s “black site” program, which had seen the agency operate a series of clandestine overseas prisons for terrorism suspects. A few months later, on April 9, 2009, then CIA Director Leon Panetta stated that the CIA “no longer operates detention facilities or black sites,” and that the sites were being “decommissioned.” At the same time, however, the CIA was also maintaining a series of “special relationships” under which cooperating governments maintained proxy prisons for the CIA….

Scahill’s report raises important questions about the role torture and other abusive practices might be playing at the gray site in Mogadishu, and about whether the CIA is using a proxy regime there to skirt Obama’s executive order. The bottom line, Scahill told me, is that “the U.S. is actively using a secret prison in Somalia where suspects are held with no access to lawyers, courts, due process, the Red Cross, or any remedy to contest their imprisonment.” On Wednesday, a Red Cross representative in Mogadishu acknowledged that the organization hadn’t previously known about the CIA’s prison, and that its representatives hadn’t been invited there for an inspection. Such an omission would be a violation of Obama’s order, which ensures Red Cross access, except the pretense of Somali control presumably allows the CIA to avoid complying.

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7) The administration has also been criticized for its treatment of Bradley Manning. In April, 2011, Bruce Ackerman of Yale Law School and Yochai Benkler of Harvard Law School published an op-ed in the New York Review of Books critisizing the conditions of Manning’s detention. The letter, which was co-signed by “250 members of the academic legal community,” read in part:

Bradley Manning is the soldier charged with leaking US government documents to Wikileaks. He is currently detained under degrading and inhumane conditions that are illegal and immoral.

For nine months, Manning has been confined to his cell for twenty-three hours a day. During his one remaining hour, he can walk in circles in another room, with no other prisoners present. He is not allowed to doze off or relax during the day, but must answer the question “Are you OK?” verbally and in the affirmative every five minutes. At night, he is awakened to be asked again “Are you OK?” every time he turns his back to the cell door or covers his head with a blanket so that the guards cannot see his face. During the past week he was forced to sleep naked and stand naked for inspection in front of his cell, and for the indefinite future must remove his clothes and wear a “smock” under claims of risk to himself that he disputes.

The sum of the treatment that has been widely reported is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment and the Fifth Amendment’s guarantee against punishment without trial. If continued, it may well amount to a violation of the criminal statute against torture, defined as, among other things, “the administration or application…of… procedures calculated to disrupt profoundly the senses or the personality.”

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In March, 2012, The Guardianreported that similar conclusions had been reached by Juan Mendez, the UN’s special rapporteur for torture:

The UN special rapporteur on torture has formally accused the US government of cruel, inhuman and degrading treatment towards Bradley Manning, the US soldier who was held in solitary confinement for almost a year on suspicion of being the WikiLeaks source.

Juan Mendez has completed a 14-month investigation into the treatment of Manning since the soldier’s arrest at a US military base in May 2010. He concludes that the US military was at least culpable of cruel and inhumane treatment in keeping Manning locked up alone for 23 hours a day over an 11-month period in conditions that he also found might have constituted torture.

“The special rapporteur concludes that imposing seriously punitive conditions of detention on someone who has not been found guilty of any crime is a violation of his right to physical and psychological integrity as well as of his presumption of innocence,” Mendez writes.

=Topic 5: What explains the necessity of the growth of federal anti-terrorism activities, and what has been the consequence of those activities? (Return to Top)

Relevant Facts and Criticism:

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1) In 2010, the Washington Post published a multi-part examination of the growth of America’s counter-terrorism operations in the years following the attacks of September 11, 2011. Entitled “Top Secret America,” the series began with the following conclusions:

These are some of the findings of a two-year investigation by The Washington Post that discovered what amounts to an alternative geography of the United States, a Top Secret America hidden from public view and lacking in thorough oversight. After nine years of unprecedented spending and growth, the result is that the system put in place to keep the United States safe is so massive that its effectiveness is impossible to determine.

The investigation’s other findings include:

Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.

An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.

In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings – about 17 million square feet of space.

Many security and intelligence agencies do the same work, creating redundancy and waste. For example, 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks.

Analysts who make sense of documents and conversations obtained by foreign and domestic spying share their judgment by publishing 50,000 intelligence reports each year – a volume so large that many are routinely ignored.

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2) In May, 2011, an article by Jane Mayer in The New Yorker noted that “at least two and a half million people hold confidential, secret, or top-secret clearances.” Mayer also wrote about the capacities of the N.S.A.:

Even in an age in which computerized feats are commonplace, the N.S.A.’s capabilities are breathtaking. The agency reportedly has the capacity to intercept and download, every six hours, electronic communications equivalent to the contents of the Library of Congress. Three times the size of the C.I.A., and with a third of the U.S.’s entire intelligence budget, the N.S.A. has a five-thousand-acre campus at Fort Meade protected by iris scanners and facial-recognition devices. The electric bill there is said to surpass seventy million dollars a year.

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3) In March, 2012, Wired published the results of its investigation into the construction of the nation’s largest surveillance facility in Bluffdale, Utah:

Under construction by contractors with top-secret clearances, the blandly named Utah Data Center is being built for the National Security Agency. A project of immense secrecy, it is the final piece in a complex puzzle assembled over the past decade. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks. The heavily fortified $2 billion center should be up and running in September 2013. Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital “pocket litter.” It is, in some measure, the realization of the “total information awareness” program created during the first term of the Bush administration—an effort that was killed by Congress in 2003 after it caused an outcry over its potential for invading Americans’ privacy.

AP’s investigation has revealed that the NYPD dispatched undercover officers into minority neighborhoods as part of a human mapping program. Police also used informants, known as “mosque crawlers,” to monitor sermons, even when there was no evidence of wrongdoing.

The AP also determined that police subjected entire neighborhoods to surveillance and scrutiny, often because of the ethnicity of the residents, not because of any accusations of crimes. Hundreds of mosques and Muslim student groups were investigated and dozens were infiltrated. Many of these operations were built with help from the CIA, which is prohibited from spying on Americans but was instrumental in transforming the NYPD’s intelligence unit after 9/11.

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5) In August, 2012, Apuzzo and Goldman reported on the results of one aspect of those activities:

NEW YORK (AP) — In more than six years of spying on Muslim neighborhoods, eavesdropping on conversations and cataloguing mosques, the New York Police Department’s secret Demographics Unit never generated a lead or triggered a terrorism investigation, the department acknowledged in court testimony unsealed late Monday.

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6) In April, 2012, David K. Shipler, also a Pulitzer winner, published an opinion piece in the New York Times noting the degree to which government agents have been behind recent terrorism plots:

THE United States has been narrowly saved from lethal terrorist plots in recent years — or so it has seemed. A would-be suicide bomber was intercepted on his way to the Capitol; a scheme to bomb synagogues and shoot Stinger missiles at military aircraft was developed by men in Newburgh, N.Y.; and a fanciful idea to fly explosive-laden model planes into the Pentagon and the Capitol was hatched in Massachusetts.

But all these dramas were facilitated by the F.B.I., whose undercover agents and informers posed as terrorists offering a dummy missile, fake C-4 explosives, a disarmed suicide vest and rudimentary training. Suspects naïvely played their parts until they were arrested.

The piece noted the following statistic: “Of the 22 most frightening plans for attacks since 9/11 on American soil, 14 were developed in sting operations.”

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7) The 2011 “Report on Terrorism” published by the National Counterterrorism Center surveyed terrorist incidents, injuries, and deaths around the world. It summarized its findings as follows:

Over 10,000 terrorist attacks occurred in 2011, affecting nearly 45,000 victims in 70 countries and resulting in over 12,500 deaths. The total number of worldwide attacks in 2011, however, dropped by almost 12 percent from 2010 and nearly 29 percent from 2007. Although the 2011 numbers represent five-year lows, they also underscore the human toll and geographic reach of terrorism. The Near East and South Asia continued to experience the most attacks, incurring just over 75 percent of the 2011 total. In addition, Africa and the Western Hemisphere experienced five-year highs in the number of attacks, exhibiting the constant evolution of the terrorist threat.

Afghanistan, Iraq, and Pakistan were the three nations that saw the highest numbers of terrorism deaths in 2011: 3,353, 3,063, and 2,033 respectively. The United States was not in the list of leading countries for terrorism deaths. Syria, 15th on the list, saw 52 terrorism-related deaths in 2011.

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8) By contrast, the 2012 “State of the World’s Mothers” report authored by Save the Children noted that approximately 2.6 million children had died in the past year due to malnutrition.

9) Along these lines, the Centers for Disease Control lists the following statistics for cigarette-related deaths:

Cigarette smoking causes about 1 of every 5 deaths in the United States each year. Cigarette smoking is estimated to cause the following:

443,000 deaths annually (including deaths from secondhand smoke)

49,400 deaths per year from secondhand smoke exposure

269,655 deaths annually among men

173,940 deaths annually among women

10) Finally, National Highway Traffic Safety Administration statistics revealed that in 2010, there were 32,778 traffic-related deaths in the United States. In 2011, there were 32,310 deaths, according to the Administration’s statistics.

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11) This history provides context for one of the more contentious aspects of the Obama administration’s counterterrorism operations: surveillance permissible under the FISA Act.

Criticism has been voiced regarding the Obama administration’s approach to FISA legislation. In 2008, the Democratic-led Senate passed the FISA Amendments Act, which, among other things, protected telecommunications companies that had participated in the Bush administration’s warrantless wiretapping operations from legal liability.

At the time, the ACLU referred to the bill as “a blatant assault upon civil liberties and the right to privacy,” claiming that it “essentially legalizes the president’s unlawful warrantless wiretapping program.” The Electronic Frontier Foundation released a statement saying that the Senate “broadly expanding the president’s warrantless surveillance authority and unconstitutionally granting retroactive immunity to telecommunications companies that participated in the president’s illegal domestic wiretapping program.”

Barack Obama, then a Senator, voted for the legislation, though he had previously promised to filibuster “any bill that includes retroactive immunity for telecommunications companies.” In explaining his vote, Obama released a statement that read, in part:

This was not an easy call for me. I know that the FISA bill that passed the House is far from perfect. I wouldn’t have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush’s abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration’s program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That’s why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate.

But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year. The exclusivity provision makes it clear to any President or telecommunications company that no law supersedes the authority of the FISA court. In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people. But in a free society, that authority cannot be unlimited. As I’ve said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility…

The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I’m persuaded that it is necessary to keep the American people safe — particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I’ve chosen to support the current compromise. I do so with the firm intention — once I’m sworn in as President — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.

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12) However, in May of 2012, the administration supported what the Washington Postcalled a “speedy renewal” of the legislation without any substantive changes to it.

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13) In June, Senator Ron Wyden of Utah used a “hold” to block passage of the legislation through the Senate. Wiredexplained the obections Wyden had raised:

Among other reasons, he said the government should disclose how many Americans’ communications have been intercepted under the law, which was adopted in 2008 as a way to legalize the Bush administration’s warrantless wiretapping program.

“Before Congress votes to renew these authorities it is important to understand how they are working in practice,” Wyden said. “In particular, it is important for Congress to better understand how many people inside the United States have had their communications collected or reviewed under the authorities granted by the FISA Amendments Act.”

Wyden asked the Obama administration a year ago for that information. The administration replied (.pdf) that it was “not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA.”

Wyden added that the law should be amended to prevent the government “from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.” He and Sen. Mark Udall (D-Colorado) proposed that amendment last month, and it failed.

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14) Glenn Greenwald has highlighted a number of objections to the legislation. Greenwald has emphasized the concerns raised by Wyden and Udall, and focused on the administration’s admission that it is unclear how many individuals have been surveilled under the legislation.

Greenwald has also noted that the National Security Agency has already (during Obama’s term) been cited for engaging in activities not approved of by FISA. As the New York Times reported in April, 2009:

WASHINGTON — The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.

Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.

Greenwald has also objected to the administration’s approach to defending the law in court. In July of 2008, the ACLU sued to challenge the constitutionality of the recently renewed FISA legislation. The administration argued, and a district court agreed, that the lawsuit should be dismissed. As the ACLU summarized:

The district court dismisses the lawsuit on “standing” grounds because plaintiffs could not prove with certainty that they had been spied on. The court’s legal analysis would have the effect of placing the FAA – and other broad surveillance laws – permanently beyond the scope of judicial review.

However, the lawsuit was upheld on appeal, and the Supreme Court is scheduled to hear the case on October 29, 2012.

II. TRANSPARENCY

Topic 1: From a philosophical perspective, how does the White House view organizations like Wikileaks?

Relevant Facts and Criticism:

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1) The Obama administration has been consistently critical of Wikileaks. For example, following the organizations release of the Afghanistan War Logs in 2010, National Security Advisor James Jones released a statement declaring that the “United States strongly condemns the disclosure of classified information by individuals and organizations which could put the lives of Americans and our partners at risk, and threaten our national security.”

Similarly, following Wikileaks’ disclosure of diplomatic cables later that year, Vice-President Joe Biden compared Julian Assange, the founder of Wikileaks, to a “hi-tech terrorist,” and the White House released a statement which read, in part:

President Obama supports responsible, accountable, and open government at home and around the world, but this reckless and dangerous action runs counter to that goal. By releasing stolen and classified documents, Wikileaks has put at risk not only the cause of human rights but also the lives and work of these individuals. We condemn in the strongest terms the unauthorized disclosure of classified documents and sensitive national security information.

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Furthermore, Julian Assange, the founder of Wikileaks, has long been a target of the Department of Justice. And alleged Wikileaks informant Bradley Manning was arrested in June of 2010 before being charged this past February.

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2) Supporters of Wikileaks have defended the organization’s work, arguing that it revealed information that deserved to be public knowledge.

Glenn Greenwald has been a staunch supporter of the organization. At the end of 2010, he applauded what he said Wikileaks had revealed in that year, namely “the breadth of the corruption, deceit, brutality and criminality on the part of the world’s most powerful factions.” These revelations included the 2007 killing of two journalists in Iraq by U.S. military forces; 15,000 previously uncounted Iraqi civilian deaths; Obama administration involvement in deterring both Spanish and German-led prosecutions of torture conducted under the Bush administration; and U.S. collusion with the Yemeni government, which falsely took responsibility for a deadly American drone strike.

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3) The Committee to Protect Journalists has opposed the proposed prosecution of Julian Assange. In December, 2010, it sent a letter to Barack Obama and Eric Holder which read, in part:

On Thursday, the House Judiciary Committee held hearings on the implications of prosecuting Assange under the 1917 Espionage Act. We believe that such a prosecution could encourage the government to assert legal theories applying equally to all news media, which would be highly dangerous to the public interest. History shows that Congress didn’t intend the law to apply to news reporting. Over nearly a century, the government has refrained from using the act against the media. To reverse these long-standing positions would threaten grave damage to the First Amendment’s protections of free speech and the press…It would be an incalculable loss to freedom everywhere if America lost its role as a shining example, and authoritarian governments abroad could say they were only doing what the United States was doing in jailing reporters or editors for what they published.

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4) In December, 2010, the Washington Post defended prosecuted Bradley Manning while also speaking out against prosecution of Assange. The paper published an editorial which read, in part:

Such prosecutions are a bad idea. The government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets. Doing so would criminalize the exchange of information and put at risk responsible media organizations that vet and verify material and take seriously the protection of sources and methods when lives or national security are endangered. The Espionage Act is easily abused, as shown by a criminal case that dragged on for years, before being closed last year, of two lobbyists for the American Israel Public Affairs Committee who did nothing more than pass along to colleagues and a reporter information they gleaned from conversations with U.S. officials. The act should be scrapped or tightened, not given new and dangerous life.

So is the administration helpless? No; it has every right to demand strict confidentiality from its employees and others who swear to protect its secrets. It has rightly filed charges against an Army intelligence specialist who it believes was the source of the leaked documents. And the government should repair its own house, by investigating its carelessness in allowing these documents to leak and taking steps to prevent a recurrence.

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5) James Goodale, a lawyer who has defended the New York Times in four First Amendment cases before the Supreme Court (including during New York Times v. United States involving the publication of the Pentagon Papers) has spoken out against prosecuting assange. In a June, 2011 op-ed, he wrote that, “Charging Julian Assange with ‘conspiracy to commit espionage’ would effectively be setting a precedent with a charge that more accurately could be characterized as ‘conspiracy to commit journalism.’”

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6) In December, 2010, Daniel Ellsberg, the reporter who discovered and leaked the Pentagon Papers, defended Wikileaks, saying, “I think they provided a very valuable service…To call them terrorists is not only mistaken, it’s absurd.”

Ellsburg has also defended Bradley Manning on multiple occasions. In March of 2011, he said Manning was acting in the national security interests of the United States:

“Our enemy is generally al Qaeda, and they want these wars to continue,” Ellsberg said. “The people who give comfort to the enemy are the people who sent troops there and are keeping the cost of the war from the people. Bradley Manning is acting in the interest of the United States and against the interest of our enemy al Qaeda.”

This is the President of the United States speaking about a US military soldier detained for almost a year on charges of leaking classified (but not top secret, the level of files released by Ellsberg) documents. Manning’s lawyer is considering considered (corrected: his transfer made the writ moot)filing a writ of habeus corpus for the length of time and totality of abuse suffered by Manning while in military custody.

President Obama has already made up his mind. He thinks Manning “broke the law.” It’s no wonder he considered Manning’s abuse to “meet our basic standards” when he thinks Manning is already guilty.

=Topic 3: Why has there been such an increase in prosecutions under the Espionage Act? (Return to Top)

Relevant Facts and Criticism:

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1) Upon his election, President-Elect Obama’s transition website made a point of praising whistleblowers and advocating for their protection:

Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

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2) However, the Obama administration has attempted to use the Espionage Act to prosecute those leaking government information more times than all other U.S. administrations combined. A May, 2012 piece in the Miami Herald reviewed the record:

Obama took office pledging tolerance and even support for whistleblowers, but instead is prosecuting them with a zeal that’s historically unprecedented. His Justice Department has conducted six prosecutions over leaks of classified information to reporters. Five involve the Espionage Act, a powerful law that had previously been used only four times since it was enacted in 1917 to prosecute spies.

Some spies. We’re no longer in the era of Aldrich Ames, Robert Hanssen or Kim Philby, infamous Cold War turncoats.

Instead, there’s Thomas Drake, a career official of the National Security Agency, who faced 35 years in prison for telling a Baltimore Sun reporter about what The New York Times called “a potential billion-dollar computer boondoggle.” At stake was bureaucratic embarrassment, not national security. (The case against Drake collapsed last summer.)

Then there’s Shamai Leibowitz, a translator for the FBI, who believed he had intercepted evidence of illegal influence-peddling by the Israeli embassy. When his boss wouldn’t act, he leaked transcripts to a blogger. He got 20 months.

Ex-CIA agent John Kiriakou was indicted in January for allegedly identifying a Guantánamo interrogator (who was not working undercover;) Stephen Kim, a State Department analyst, allegedly told a reporter for Fox News — wait for it — that the U.S. was worried North Korea might respond to new U.N. sanctions by testing another A-bomb; and Jeffrey Sterling, who allegedly disclosed a botched CIA operation in Iran that was described in a 2006 book by a Times reporter.

And there’s the biggest case, the court martial of Bradley Manning, the Army private accused of engineering the mammoth dumps of U.S. military and diplomatic data that Wikileaks, the online whistleblower network, turned over to leading newspapers in 2010 and 2011.

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3) In a May, 2011 article in The New Yorker, Jane Mayer explored the context of Drake case. While serving as an N.S.A. official, Drake had been “an anonymous source for the congressional committees investigating intelligence failures related to 9/11.” But he had also helped pass information along to the Pentagon’s Inspector General concerning the use of a software program, known as Trailblazer, which he believed was both wasting government money and was being used in a manner which violated civil rights by illegally collecting the communications of American citizens. Eventually, Drake began providing information on Trailblazer to a reporter with the <Baltimore Sun, Siobhan Gorman, who “wrote a prize-winning series of articles for the Sun about financial waste, bureaucratic dysfunction, and dubious legal practices in N.S.A. counterterrorism programs.”

In June, 2011, the case ended, with Drake pleading guilty to a misdemeanor in exchange for the government’s dropping of further charges.

Mayer began her article by noting the White House’s use of the Espionage Act:

When President Barack Obama took office, in 2009, he championed the cause of government transparency, and spoke admiringly of whistle-blowers, whom he described as “often the best source of information about waste, fraud, and abuse in government.” But the Obama Administration has pursued leak prosecutions with a surprising relentlessness. Including the Drake case, it has been using the Espionage Act to press criminal charges in five alleged instances of national-security leaks—more such prosecutions than have occurred in all previous Administrations combined. The Drake case is one of two that Obama’s Justice Department has carried over from the Bush years.

Gabriel Schoenfeld, a conservative political scientist at the Hudson Institute, who, in his book “Necessary Secrets” (2010), argues for more stringent protection of classified information, says, “Ironically, Obama has presided over the most draconian crackdown on leaks in our history—even more so than Nixon.”

Mayer also reported on Obama’s personal approach to transparency, and criticism of that approach:

Jack Balkin, a liberal law professor at Yale, agrees that the increase in leak prosecutions is part of a larger transformation. “We are witnessing the bipartisan normalization and legitimization of a national-surveillance state,” he says. In his view, zealous leak prosecutions are consonant with other political shifts since 9/11: the emergence of a vast new security bureaucracy, in which at least two and a half million people hold confidential, secret, or top-secret clearances; huge expenditures on electronic monitoring, along with a reinterpretation of the law in order to sanction it; and corporate partnerships with the government that have transformed the counterterrorism industry into a powerful lobbying force. Obama, Balkin says, has “systematically adopted policies consistent with the second term of the Bush Administration.”

On March 28th, Obama held a meeting in the White House with five advocates for greater transparency in government. During the discussion, the President drew a sharp distinction between whistle-blowers who exclusively reveal wrongdoing and those who jeopardize national security. The importance of maintaining secrecy about the impending raid on Osama bin Laden’s compound was likely on Obama’s mind. The White House has been particularly bedevilled by the ongoing release of classified documents by WikiLeaks, the group led by Julian Assange. Last year, WikiLeaks began releasing a vast trove of sensitive government documents allegedly leaked by a U.S. soldier, Bradley Manning; the documents included references to a courier for bin Laden who had moved his family to Abbottabad—the town where bin Laden was hiding out. Manning has been charged with “aiding the enemy.”

Danielle Brian, the executive director of the Project on Government Oversight, attended the meeting, and said that Obama’s tone was generally supportive of transparency. But when the subject of national-security leaks came up, Brian said, “the President shifted in his seat and leaned forward. He said this may be where we have some differences. He said he doesn’t want to protect the people who leak to the media war plans that could impact the troops.” Though Brian was impressed with Obama’s over-all stance on transparency, she felt that he might be misinformed about some of the current leak cases. She warned Obama that prosecuting whistle-blowers would undermine his legacy. Brian had been told by the White House to avoid any “ask”s on specific issues, but she told the President that, according to his own logic, Drake was exactly the kind of whistle-blower who deserved protection.

Mayer noted that Drake wasn’t universally supported:

Not everyone familiar with Drake’s case is moved by his plight. A former federal official knowledgeable about the case says, “To his credit, he tried to raise these issues, and, to an extent, they were dealt with. But who died and left him in charge?

However, she cites more examples of criticisms of the government’s actions than support for it. After detailing a set of reduced charges Drake was offered in 2009, Mayer offered this analysis to close her piece:

Morton Halperin, of the Open Society Institute, says that the reduced charges make the prosecution even more outlandish: “If Drake is convicted, it means the Espionage Law is an Official Secrets Act.” Because reporters often retain unauthorized defense documents, Drake’s conviction would establish a legal precedent making it possible to prosecute journalists as spies. “It poses a grave threat to the mechanism by which we learn most of what the government does,” Halperin says.

The Espionage Act has rarely been used to prosecute leakers and whistle-blowers. Drake’s case is only the fourth in which the act has been used to indict someone for mishandling classified material. “It was meant to deal with classic espionage, not publication,” Stephen Vladeck, a law professor at American University who is an expert on the statute, says…

Drake’s case also raises questions about double standards. In recent years, several top officials accused of similar misdeeds have not faced such serious charges. John Deutch, the former C.I.A. director, and Alberto Gonzales, the former Attorney General, both faced much less stringent punishment after taking classified documents home without authorization…

Jack Goldsmith, a Harvard law professor who served in the Bush Justice Department, laments the lack of consistency in leak prosecutions. He notes that no investigations have been launched into the sourcing of Bob Woodward’s four most recent books, even though “they are filled with classified information that he could only have received from the top of the government.” Gabriel Schoenfeld, of the Hudson Institute, says, “The selectivity of the prosecutions here is nightmarish. It’s a broken system.”

Mark Feldstein, a professor of media and public affairs at George Washington University, warns that, if whistle-blowers and other dissenters are singled out for prosecution, “this has gigantic repercussions. You choke off the information that the public needs to judge policy.”

Few people are more disturbed about Drake’s prosecution than the others who spoke out against the N.S.A. surveillance program. In 2008, Thomas Tamm, a Justice Department lawyer, revealed that he was one of the people who leaked to the Times. He says of Obama, “It’s so disappointing from someone who was a constitutional-law professor, and who made all those campaign promises.” The Justice Department recently confirmed that it won’t pursue charges against Tamm. Speaking before Congress, Attorney General Holder explained that “there is a balancing that has to be done . . . between what our national-security interests are and what might be gained by prosecuting a particular individual.” The decision provoked strong criticism from Republicans, underscoring the political pressures that the Justice Department faces when it backs off such prosecutions. Still, Tamm questions why the Drake case is proceeding, given that Drake never revealed anything as sensitive as what appeared in the Times. “The program he talked to the Baltimore Sun about was a failure and wasted billions of dollars,” Tamm says. “It’s embarrassing to the N.S.A., but it’s not giving aid and comfort to the enemy.”

Mark Klein, the former A.T. & T. employee who exposed the telecom-company wiretaps, is also dismayed by the Drake case. “I think it’s outrageous,” he says. “The Bush people have been let off. The telecom companies got immunity. The only people Obama has prosecuted are the whistle-blowers.”

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4) An August, 2011 op-ed authored by Drake and another whistleblower, Jesselyn Radack (who was prosecuted by the Bush administration), futher examined these themes:

When President Obama took office, federal employees who had exposed wrongdoing or were considering doing so had reason for hope. Eight years of the Bush administration’s relentless retaliation against whistle-blowers had ended, and Obama spoke encouragingly of transparency and due process.

Since then, the administration has taken some positive steps for whistle-blowers, most notably in (unsuccessfully) advocating legislation to protect them and in loosening the government’s grip on public information. However, its treatment of national-security and intelligence whistle-blowers – arguably the ones we need most – has been brutal. It has pursued multiple prosecutions of such whistle-blowers on espionage charges.

As prominent whistle-blowers on matters of national security, we have experienced the crackdown firsthand.

Each of our cases began shortly after 9/11. One of us (Radack) warned the Justice Department against interrogating “American Taliban” John Walker Lindh without an attorney. She later exposed the FBI’s ethics violations in deciding to proceed, its barbaric treatment of him, and the mysterious disappearance of evidence of the warning from DOJ files.

The other (Drake) exposed billions of dollars in waste, mismanagement, and malfeasance at the National Security Agency, epitomized by an expensive surveillance program that was ultimately canceled…

The Espionage Act was meant to help the government go after spies, not whistle-blowers. Using it to silence public servants who reveal government malfeasance is chilling at best and tyrannical at worst.

This administration’s attack on national-security whistle-blowers expands Bush’s secrecy regime and cripples the free press by silencing its most important sources. It’s a recipe for the slow poisoning of a democracy.

5) In April, 2012, Radack authored another op-ed, this time for Salon.com:

While the Bush administration treated whistleblowers unmercifully, the Obama administration has been far worse. It is actually prosecuting them, and doing so under the Espionage Act — one of the most serious charges that can be leveled against an American. The Espionage Act is an archaic World War I-era law meant to go after spies, not whistleblowers. Strangely, using it to target the media and sources is the brainchild of neo-conservative Gabriel Schoenfeld, who would have sources who disclose information to reporters, journalists who then write about it for newspapers, the newspapers that publish the information and the publisher itself all be held criminally liable.

Everyone wants to know why Obama, with his pledge to “protect whistleblowers,” would do this…That’s not just a broken promise, it’s a complete reversal.

At first I thought Obama’s war on whistleblowers was meant to appease the intelligence establishment, which saw him as weak. I soon recognized this assault as a devious way to create bad precedent for going after journalists. All the Espionage Act cases involve allegations that the government employee “leaked” information (or retained information for the purpose of leaking it) to journalists.

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6) Rather than seeking to avoid the administration’s actions on this front, the Obama re-election campaign is highlighting its use of the Espionage Act. As an August, 2012 campaign document noted:

As Commander-in-chief, President Obama has taken a firm approach to protecting our nation’s security and guarding information regarding operations that involve or affect our military and our allies. As the President has said, “we don’t play around with” the confidentiality, safety, and security of our military members, their families, and the American people…

But this manipulative and unfounded attack flies in the face of reality. President Obama has done more than any other administration to forcefully pursue and address leaks of classified national security information. Here are the facts:

The Obama administration has prosecuted twice as many cases under the Espionage Act as all other administrations combined.

Under the President, the Justice Department has prosecuted six cases regarding national security leaks.

Before he took office, federal prosecutors had used the Espionage Act in only three cases.

=Topic 4: Has the government hurt the cause of government transparency? (Return to Top)

Relevant Facts and Criticisms:

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1) In June of 2011, the New York Times published an op-ed by Stephen Kohn, director of the National Whistleblowers Center, unfavoribly comparing the Obama adminsitration’s approach to whistleblowers with that of the Founders. It read, in part:

It is no surprise that honest citizens who witness waste, fraud and abuse in national security programs but lack legal protections are silenced or forced to turn to unauthorized methods to expose malfeasance, incompetence or negligence.

Instead of ignoring and intimidating whistle-blowers, Congress and the executive branch would do well to follow the example of the Continental Congress, by supporting and shielding them.

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2) In February, 2012, Jake Tapper of ABC News referenced the administration’s whistleblower prosecutions during a White House press conference, before offering the following critique:

Jake Tapper: The White House keeps praising these journalists who are — who have been killed —

MR. CARNEY: I don’t know about “keeps.” I think —

JAKE TAPPER: You’ve commented, Vice President Biden did it in a statement. How does that square with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court? You’re currently — I think that you’ve evoked it the sixth time — and before the Obama administration it had only been used three times in history. This is the sixth time you’re suing a CIA officer for allegedly providing information in 2009 about CIA torture. Certainly that’s something that’s in the public interest of the United States; his administration is taking this person to court. There just seems to be a disconnect here. You want aggressive journalism abroad — you just don’t want it in the United States.

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3) In a March, 2012 op-ed written by Andrew Rosenthal, the editorial page editor of the New York Times:

The Bush administration kept secrets largely for bad reasons: It covered up its torture memos, the kidnapping of innocent foreign citizens, illegal wiretapping and other misdeeds. Barack Obama promised to bring more transparency to Washington in the 2008 campaign, but he has failed to do that. In some ways, his administration is even worse than the Bush team when it comes to abusing the privilege of secrecy.

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4) In June, 2012, Scott Horton, a contributing editor with Harper’s, described the Obama administration’s approach to leakers as “terrible.”

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5) The administration has also been accused of hypocrisy regarding its approach to leaks.

A June, 2012 article in the New York Times by Scott Shane commented on a seeming double-standard employed by the White House:

Even so, contradictory behavior on the secrecy front has been especially striking under the Obama administration.

Mr. Obama campaigned for the presidency in 2008 by denouncing his predecessor’s secret prisons and brutal interrogations, which were public knowledge only because of leaks of classified information to the news media. He began his term by pledging the most transparent administration in history.

In office, however, he has outdone all previous presidents in mounting criminal prosecutions over such leaks, overseeing six such cases to date, compared with three under all previous administrations combined.

Senator John McCain of Arizona, Mr. Obama’s opponent in 2008, told reporters on Tuesday that administration officials were “intentionally leaking information to enhance President Obama’s image as a tough guy for the elections” — while at the same time prosecuting low-level officials for disclosures. On Wednesday, Jay Carney, the White House press secretary, called that charge “grossly irresponsible.”

The administration’s inconsistency, however, has been particularly evident on the drone program. Officials routinely give reporters limited information on strikes, usually on the condition of anonymity. Mr. Obama spoke explicitly about the strikes in Pakistan in an online appearance in January, arguing that they were precisely aimed at Al Qaeda.

Yet the drone attacks in Pakistan are part of a C.I.A. covert action program designed to be “deniable” by American leaders; by law they are in the most carefully protected category of secrets that the government keeps. In court, the administration has taken the position that it can neither confirm nor deny the existence of such operations.

Mr. Shane has experience working with high-level anonymous government sources. The examination of the White House-directed “kill list” he authored with Jo Becker authored was based on, as the article stated, “three dozen of his [Obama’s] current and former advisers.”

In June, 2012, Shane also wrote of another apparent contradiction in the administration’s approach to secrecy:

Can a government document be both publicly available and properly classified at the same time?

That is not a Zen riddle. It is a serious question posed in a provocative lawsuit filed last year by the American Civil Liberties Union, and on Monday a federal judge said the answer was yes.

Judge Colleen Kollar-Kotelly of Federal District Court in Washington ruled that the State Department had acted correctly in withholding more than half of 23 classified diplomatic cables sought by the A.C.L.U. — all of which had been posted on the Web months earlier by WikiLeaks.

The A.C.L.U. filed what it acknowledged was a “mischievous” Freedom of Information Act request in an effort to force the government to acknowledge counterterrorism operations that it had refused to discuss on secrecy grounds and that were mentioned in the cables. The State Department, acting as if the cables were still secret, withheld 12 of the 23 cables completely and released 11 with some redactions.

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6) Another example of such alleged hypocricy involves the administration’s work with those behind the upcoming film, Zero Dark Thirty, a portrayal of the search for, and eventual killing of, Osama bin Laden.

In May, 2012, reports emerged revealing the degree to which the administration had revealed classified information to the filmmakers. In January, 2012, the organization Judicial Watch filed a FOIA lawsuit requesting documents pertaining to interactions federal officials had with the fimmakers. Judicial Watch won the suit, and in May, the CIA an DoD released documents pertaining to the leaks. NBC news reported the story as follows:

According to the documents, the filmmakers were granted access to a Navy SEAL captain who was the “planner, operator and commander of SEAL Team Six,” which killed bin Laden. In one memo one of the filmmakers says he had a “good meeting with Brennan and McDonough” and says “they were forward leaning, sharing their point of view on command and control.”

John Brennan is the president’s chief counterterrorism adviser, and Denis McDonough is deputy national security adviser.

Just weeks after Pentagon and Central Intelligence Agency officials warned publicly of the dangers posed by leaks about the raid that killed Osama bin Laden, top officials at both agencies and at the White House granted Hollywood filmmakers unusual access to those involved in planning the raid and some of the methods they used to do it, newly released government records show.

At a briefing in July 2011, Undersecretary of Defense for Intelligence Mike Vickers told filmmakers Mark Boal and Kathryn Bigelow that the leaders of the the Special Operations Command couldn’t speak to them for appearances’ sake. However, Vickers said that the Pentagon would make available a Navy SEAL who was involved in planning the raid from its earliest stages.

In August, 2012, Judicial Watch announced the release of further documents pertaining to the story. A representative document is as follows:

According to e-mail exchange on June 7, 2011, CIA spokesperson Marie E. Harf openly discussed providing preferential treatment to the Boal/Bigelow project over others related to the bin Laden killing: “I know we don’t pick favorites but it makes sense to get behind a winning horse…Mark and Kathryn’s movie is going to be the first and the biggest. It’s got the most money behind it, and two Oscar winners on board…”

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7) As previously mentioned, the administration has denied that it has selectively leaked classified information. As the aforementioned August campaign document stated,

As the reporters who wrote the stories in question have continually made clear, the suggestion that President Obama’s White House has deliberately leaked information is simply untrue. One Reporter who wrote on purported sensitive programs for The New York Times said the idea that “the White House calls you up and says, ‘Why don’t you drop by. We’ll tell you about our most compartmentalized program’ … That doesn’t happen.” Another colleague called the idea that the White House had promoted the story “absurd.”

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8) In August, 2012, Glenn Greenwald questioned whether the former SEAL Team 6 member whose book details the bin Laden raid would be prosecuted by the administration:

Given that many of the details of the Bin Laden raid remain classified, this would appear to be a clear and obvious case of the unauthorized disclosure of classified information. The same is presumably true of any details he provides about “his other previously unreported Seal missions”. Alternatively, if the raid has now been declassified, then what excuse remains for continuing to conceal the video and photographic evidence in the possession of the CIA that would reflect what actually happened?

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[UPDATE: As of early September, the Defense Department did appear to be considering pursuing charges against the book’s author, Matt Bissonnette, as reported by CNN and Reuters, among others.]

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9) The administration’s unwillingness to detail its drone policy has come under special scrutiny. The op-ed by Andrew Rosenthal mentioned above devoted specific attention to the subject:

One example of this abuse is the government’s effort to block public scrutiny of its “targeted killing” policy – the use of drone aircraft to kill specific people identified as threats to the United States. The most notorious case is the Sept. 30, 2011, drone strike in Yemen that killed Anwar al-Awlaki, an American citizen, who United States officials say was part of Al Qaeda’s command structure. Another American was killed in the strike, and Mr. Awlaki’s 16-year-old son, also an American citizen, was killed in an attack two weeks later.

The Obama administration has refused to make public the legal documents underpinning the president’s decision to order the killing of an American citizen without any judicial review before or after the attack. So far, it has not even made those documents available to the Senate Judiciary Committee.

Accordingly, the American Civil Liberties Union has filed two lawsuits aimed at forcing disclosure. The advocacy organization wants to see the factual information that led to the decision to kill Mr. Awlaki, as well as the legal memo justifying it. (The New York Times has also filed a lawsuit. Our paper is only seeking the memo.)

But the government is blocking any consideration of these petitions with one of the oldest, and most pathetic, dodges in the secrecy game. It says it cannot confirm or deny the existence of any drone strike policy or program.

The suit referenced above isan active ACLU FOIA lawsuit aimed at forcing the “government to disclose the legal basis for its use of predator drones to conduct ‘targeted killings’ overseas.” The lawsuit also is seeking the release of information regarding “when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killings.” It has been supported by other organizations, including Human Rights Watch and the Bureau of Investigative Journalism.

Of the lawsuit, and the administration’s acknowledgement of its use of drones more generally, Greenwald has written:

Numerous Obama officials — including the President himself and the CIA Director — have repeatedly boasted in public about this very program. Obama recently hailed the CIA drone program by claiming that “we are very careful in terms of how it’s been applied,” and added that it is “a targeted, focused effort at people who are on a list of active terrorists, who are trying to go in and harm Americans, hit American facilities, American bases and so on.” Obama has told playful jokes about the same drone program. Former CIA Director and current Defense Secretary Leon Panetta also likes to tell cute little jokes about CIA Predator drones, and then proclaimed in December that the drone program has “been very effective at undermining al Qaeda and their ability to plan those kinds of attacks.” Just two weeks ago, Attorney General Eric Holder gave a speech purporting to legally justify these same drone attacks.

So Obama officials are eager to publicly tout the supposed benefits of the CIA’s drone programs in order to generate political gain for the President: to make him look like some sort of Tough, Brave Warrior single-handedly vanquishing Al Qaeda.

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10) Greenwald has highlighted new secrecy procedures put in place at federal agencies, such as those reported in June, 2012 by Charlie Savage of the New York Times:

Intelligence officials will face the possibility of additional scrutiny by lie detector tests and a recently established inspector general under new rules intended to deter and detect leaking to news organizations, James R. Clapper Jr., the director of national intelligence, announced Monday.

The new steps add to the ability of intelligence agencies to conduct their own investigations of potential leakers, even when the Justice Department has decided that no criminal case can be brought. They were developed amid a bipartisan outcry in Congress over recent disclosures in several news outlets — including The New York Times — about matters like the use of a computer virus to sabotage Iranian nuclear equipment, drone strikes and the foiling of a bomb plot by Al Qaeda’s Yemen branch.

And referring to what he has labeled “secrecy creep,” he has noted apparent incidents of whistleblower prosecution taking place within particular federal agencies, such as the Department of the Interior and the National Reconnaissance Office.

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11) Summing up these general lines of argument, former Foreign Service officer Peter van Buren wrote the following in June:

White is black and down is up. Leaks that favor the president are shoveled out regardless of national security, while national security is twisted to pummel leaks that do not favor him. Watching their boss, bureaucrats act on their own, freelancing the punishment of whistleblowers, knowing their retaliatory actions will be condoned…

The issue of whether the White House leaked information to support the president’s reelection while crushing whistleblower leaks it disfavors shouldn’t be seen as just another O’Reilly v. Maddow sporting event. What lies at the nexus of Obama’s targeted drone killings, his self-serving leaks, and his aggressive prosecution of whistleblowers is a president who believes himself above the law, and seems convinced that he alone has a preternatural ability to determine right from wrong.

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12) The White House has also been criticized for its approach to FOIA requests. The administration’s official position is one welcoming of FOIAs:

A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, “sunlight is said to be the best of disinfectants.” In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

However, a March, 2012 article in Politico highlighted criticisms of the administration’s willingness to release requested information:

David Sobel, senior counsel at the Electronic Frontier Foundation, said that “despite the positive rhetoric that has come from the White House and the attorney general, that guidance has not been translated into real world results in actual cases. … Basically, the reviews are terrible.”

Administration lawyers are aggressively fighting FOIA requests at the agency level and in court — sometimes on Obama’s direct orders. They’ve also wielded anti-transparency arguments even bolder than those asserted by the Bush administration.

The administration has embarked on an unprecedented wave of prosecutions of whistleblowers and alleged leakers — an effort many journalists believe is aimed at blocking national security-related stories. “There just seems to be a disconnect here. You want aggressive journalism abroad; you just don’t want it in the United States,” ABC News correspondent Jake Tapper told White House press secretary Jay Carney at a recent briefing for reporters.

In one of those cases, the Justice Department is trying to force a New York Times reporter to identify his confidential sources and is arguing that he has no legal protection from doing so.

Compliance with agencies’ open-government plans has been spotty, with confusing and inaccurate metrics sometimes used to assess progress. Some federal agencies are also throwing up new hurdles, such as more fees, in the path of those seeking records.

The Office of Management and Budget has stalled for more than a year the proposals of the chief FOIA ombudsman’s office to improve governmentwide FOIA operations.

Topic 4: What are the consequences of the White House’s invocation of “State Secrets” when opposing the release of classified information? (Return to Top)

Relevant Facts and Criticism:

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1) While running for office, then-Senator Obama’s campaign website accused President Bush for having “invoked a legal tool known as the ‘state secrets’ privelege more than any other previous aministration to get cases thrown out of civil court.” However, the Obama administration has made the “state secrets” argument repeatedly when seeking to dismiss cases. Examples include:

In February of 2009, the administration invoked the state secrets defense in response to an ACLU lawsuit filed on behalf of individuals claiming to have faced extraordinary rendition under the Bush administration. The case was previously dismissed, but the Obama administration argued for the dismissal of it again under the state secrets doctrine.

In March of 2009, the administration invoked state secrets when seeking to dismiss a lawsuit filed by the al-Haramain Islamic Foundation. The organization was suing for damages after some of its lawyers and members of its board were wiretapped under the Bush administration.

In April of 2009, the administration invoked state secrets when seeking to dismiss a lawsuit filed by the Electronic Frontier Foundation over wiretapping engaged in by the Bush administration.

In October of 2009, the administration invoked “state secrets” when arguing for the dismissal of a class action lawsuit alleging illegal “dragnet” surveillance conducted under the Bush administration. The argument put forward by Attorney General Eric Holder stated that “there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”

In September of 2010, the administration argued for the dismissal of a lawsuit filed on behalf of the father of Anwar al-Awlaki, who was challenging the placing of the cleric on the administration’s list of individuals to target for lethal action. “The plaintiff has demanded the government disclose a wide variety of classified information that could harm our national security,” said Matthew Miller, a spokesman for the Justice Department. “It strains credulity to argue that our laws require the government to disclose to an active, operational terrorist any information about how, when and where we fight terrorism.”

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2) The administration’s position in these cases has faced criticism.

The government’s increasing use of the state secrets doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash. David Rivkin, a lawyer in the White House of President George H. W. Bush, echoed that concern.

“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” he said.

What was abusive and dangerous about the Bush administration’s version of the States Secret privilege — just as the Obama/Biden campaign pointed out — was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn’t be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security. That is the theory that caused the bulk of the controversy when used by the Bush DOJ — because it shields entire government programs from any judicial scrutiny — and it is that exact version of the privilege that the Obama DOJ yesterday expressly advocated (and, by implication, sought to preserve for all Presidents, including Obama).

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4) Of the “dragnet” surveillance case from October of 2009, Greenwald wrote:

That was the principal authoritarian instrument used by Bush/Cheney to shield itself from judicial accountability, and it is now the instrument used by the Obama DOJ to do the same. Initially, consider this: if Obama’s argument is true — that national security would be severely damaged from any disclosures about the government’s surveillance activities, even when criminal — doesn’t that mean that the Bush administration and its right-wing followers were correct all along when they insisted that The New York Times had damaged American national security by revealing the existence of the illegal NSA program? Isn’t that the logical conclusion from Obama’s claim that no court can adjudicate the legality of the program without making us Unsafe?

Beyond that, just consider the broader implications of what is going on here. Even after they announced their new internal guidelines with great fanfare, the Obama administration is explicitly arguing that the President can break the law with impunity — can commit crimes — when it comes to domestic surveillance because our surveillance programs are so secret that national security will be harmed if courts are permitted to adjudicate their legality.

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5) In February of 2009, Dan Froomkin wrote in the Washington Post that,

There is something utterly un-American about saying that the executive branch can simply tell the judicial branch to butt out of a matter for national security reasons — and there’s no recourse. And as for these cases, even if the government is worried about legitimate national security concerns — rather than just afraid of embarrassment — there is so much in the public domain already about the related issues that government officials should at least be able to talk about what they can’t talk about.

People who put a lot of faith in President Obama’s pledges of restoring transparency to the government are having a hard time rationalizing his Justice Department’s actions on the three cases in question.

In that article, Froomkin quoted from an email he received from Louis Fischer, who works for the Law Library of the Library of Congress. Fisher wrote:

1. The administration defends the state secrets privilege on the ground that it would jeopardize national security if classified documents were made available to the public. No one argues for public disclosure of sensitive materials. The issue is whether federal judges should have access to those documents to be read in their chambers.

2. If an administration is at liberty to invoke the state secrets privilege to prevent litigation from moving forward, thus eliminating independent judicial review, could not the administration use the privilege to conceal violations of statutes, treaties, and the Constitution? What check would exist for illegal actions by the executive branch?

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6) And in February of 2009, former Reagan administration Justice Department official Bruce Fein wrote in Slate that:

In principle, President Obama is maintaining that victims of constitutional wrongdoing by the U.S. government should be denied a remedy to prevent the American people and the world at large from learning of the lawlessness perpetrated in the name of national security and exacting political and legal accountability…

President Obama’s claim of wartime necessity as justifying constitutional shortcuts is unpersuasive. The United States granted accused war criminals captured in the China Theater a particularized statement of charges and a rigorous adversarial process, noted by the United States Supreme Court in the 1950 case Eisentrager v. Johnson. As regards state secrets, the government can always accept a default judgment, meaning an acceptance of liability for alleged injuries, if it wishes to preserve vital intelligence sources and methods. The government confronts the same choice in criminal cases—i.e., either to disclose classified information necessary for a fair trial or to drop the prosecution.

President Obama pledged to restore the rule of law. But the state-secrets-privilege wars with that promise. It encourages torture, kidnappings, inhumane treatment, and similar abuses, all carried out in the name of fighting international terrorism. That encouragement is compounded by the president’s adamant opposition to criminal prosecution of former or current government officials for open and notorious abuses—for example, water-boarding or illegal surveillance. His stances on habeas corpus and state secrets flout twin verities of Justice Louis D. Brandeis: Sunshine is the best disinfectant; and, when the government becomes a lawbreaker, it invites every man to become a law unto himself.

III. ACCOUNTABILITY

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1) Shortly before President Obama took office, Charlie Savage of the New York Timesoutlined the challenges confronting him regarding torture investigations and prosecutions:

WASHINGTON — President-elect Barack Obama signaled in an interview broadcast Sunday that he was unlikely to authorize a broad inquiry into Bush administration programs like domestic eavesdropping or the treatment of terrorism suspects.

But Mr. Obama also said prosecutions would proceed if the Justice Department found evidence that laws had been broken.

As a candidate, Mr. Obama broadly condemned some counterterrorism tactics of the Bush administration and its claim that the measures were justified under executive powers. But his administration will face competing demands: pressure from liberals who want wide-ranging criminal investigations, and the need to establish trust among the country’s intelligence agencies. At the Central Intelligence Agency, in particular, many officers flatly oppose any further review and may protest the prospect of a broad inquiry into their past conduct.

In the clearest indication so far of his thinking on the issue, Mr. Obama said on the ABC News program “This Week With George Stephanopoulos” that there should be prosecutions if “somebody has blatantly broken the law” but that his legal team was still evaluating interrogation and detention issues and would examine “past practices.”

Mr. Obama added that he also had “a belief that we need to look forward as opposed to looking backwards.”

“And part of my job,” he continued, “is to make sure that, for example, at the C.I.A., you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got spend their all their time looking over their shoulders.”

The video recording of the Obama quote above is here:

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2) In April of 2009, Obama released four memos authored by the Justice Department under George W. Bush which provided legal authorization for a variety of enhanced interrogation techniques. However, Obama announced that the release didn’t mean prosecutions were likely. As The Guardianreported the story:

Barack Obama today released four top secret memos that allowed the CIA under the Bush administration to torture al-Qaida and other suspects held at Guantánamo and secret detention centres round the world.

But, in an accompanying statement, Obama ruled out prosecutions against those who had been involved. It is a “time for reflection, not retribution,” he said.

The memos provide an insight into the techniques used by the CIA and the legal basis on which the Bush administration gave the go-ahead.

In the first of the memos, dated 1 August 2002, the justice department gave the go-ahead to John Rizzo, then acting general counsel to the CIA, for operatives to move to the “increased pressure phase” in interrogating an al-Qaida suspect.

Ten techniques are approved, listed as: attention grasp, walling (in which the suspect could be pushed into a wall), a facial hold, a facial slap, cramped confinement, wall standing, sleep deprivation, insects placed in a confinement box (the suspect had a fear of insects) and the waterboard. In the latter, “the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner……..produces the perception of ‘suffocation and incipient panic’.”

‘Walling’ involved use of a plastic neck collar to slam suspects into a specially-built wall that the CIA said made the impact sound worse than it actually was. Other methods include food deprivation.

The techniques were applied to at least 14 suspects.

In explainig his decision, Obama statedthat, “It is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice, that they will not be subject to prosecution.” White House Chief of Staff Rahm Emanuel echoed the position, stating that individuals who helped craft the legal rationale for the policies “should not be prosecuted either.”

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3) As mentioned earlier in this document, in September of 2010, the 9th Circuit Court of Appeals dismissed a lawsuit filed by the ACLU on behalf of individuals claiming to have suffered extraordinary rendition. The Obama administration argued for the dismissal, using the “state secrets” defense to do so. As Charlie Savage reported:

A federal appeals court on Wednesday ruled that former prisoners of the C.I.A. could not sue over their alleged torture in overseas prisons because such a lawsuit might expose secret government information.

The sharply divided ruling was a major victory for the Obama administration’s efforts to advance a sweeping view of executive secrecy powers. It strengthens the White House’s hand as it has pushed an array of assertive counterterrorism policies, while raising an opportunity for the Supreme Court to rule for the first time in decades on the scope of the president’s power to restrict litigation that could reveal state secrets.

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4) In November of 2010, diplomatic cables released by Wikileaks revealed that in 2007, Bush administration officials sought to stop the German government from prosecuting memebrs of the CIA involved in the rendition and alleged torture of German citizen Khaled el-Masri. El-Masri was later revealed to have innocent of any connection to terrorism.

In spite of this, the CIA analyst responsible for his rendition has been promoted since President Obama took office. As the AP reported in February, 2011:

A hard-charging CIA analyst had pushed the agency into one of the biggest diplomatic embarrassments of the U.S. war on terrorism. Yet despite recommendations by an internal review, the analyst was never punished. In fact, she has risen to one of the premier jobs in the CIA’s Counterterrorism Center, helping lead President Barack Obama’s efforts to disrupt al-Qaida.

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5) Wikileaks also revealed that in January of 2009, Obama administration officials worked to halt a developing Spanish case against Bush administration officials for their work crafting allegedly illegal interrogation techniques. As David Corn reported in The Nation:

In its first months in office, the Obama administration sought to protect Bush administration officials facing criminal investigation overseas for their involvement in establishing policies the that governed interrogations of detained terrorist suspects. A “confidential” April 17, 2009, cable sent from the US embassy in Madrid to the State Department—one of the 251,287 cables obtained by WikiLeaks—details how the Obama administration, working with Republicans, leaned on Spain to derail this potential prosecution.

The previous month, a Spanish human rights group called the Association for the Dignity of Spanish Prisoners had requested that Spain’s National Court indict six former Bush officials for, as the cable describes it, “creating a legal framework that allegedly permitted torture.” The six were former Attorney General Alberto Gonzales; David Addington, former chief of staff and legal adviser to Vice President Dick Cheney; William Haynes, the Pentagon’s former general counsel; Douglas Feith, former undersecretary of defense for policy; Jay Bybee, former head of the Justice Department’s Office of Legal Counsel; and John Yoo, a former official in the Office of Legal Counsel. The human rights group contended that Spain had a duty to open an investigation under the nation’s “universal jurisdiction” law, which permits its legal system to prosecute overseas human rights crimes involving Spanish citizens and residents. Five Guantanamo detainees, the group maintained, fit that criteria.

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6) In February, 2009, 62 percent of those polled by USA TODAY/Gallup said they supported an investigation into possible torture under the Bush administration, to be conducted by either Congress or an independent body.

However, in April of 2009, Obama came out publicly against such a “truth commission.” As Josh Gerstein and Amie Parnes reported in Politico,

At a White House meeting Thursday, President Barack Obama told congressional leaders that he thinks it would be a mistake to set up a commission to investigate excesses of the Bush administration’s war on terror.

“The president said that given all that’s on the agenda and the pressing issues facing the country, that a backward-looking investigation would not be productive,” said a White House official who attended the session. “The president was very clear … that he believes it’s important that there’s not a witch hunt.”

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7) In April, 2009, the Obama administration was criticized by the UN’s rapporteur on torture, Manfred Nowak, for its approach to prosecutions. As was reported in the Christian Science Monitor:

A top United Nations official has charged that President Obama violated international law with his decision not to prosecute Central Intelligence Agency agents who tortured detainees.

Manfred Nowak, the UN rapporteur on torture, says that in accordance with the UN Convention Against Torture, the US must try those who used harsh interrogation tactics.

Last week, Mr. Obama released four memos outlining the interrogation techniques permitted by the Bush administration – including covering detainees with insects, slapping, waterboarding, and sleep deprivation. While the president has put an end to these practices, he says, the US will not prosecute CIA agents who trusted the legal opinions of the Bush administration.
Mr. Nowak says Obama’s stance on torture is a “mitigating factor,” but that it does not remove guilt from those who tortured detainees, reports the BBC. Nowak has called for an independent investigationand advocates compensating victims.

“The United States, like all other states that are part of the UN convention against torture, is committed to conducting criminal investigations of torture and to bringing all persons against whom there is sound evidence to court,” Nowak told the Austrian daily Der Standard. …
“The fact that you carried out an order doesn’t relieve you of your responsibility,” he was quoted as saying by AP news agency.

ThinkProgress provided further details regarding Nowak’s assertions:

”…[I]n an interview with the Austrian newspaper Der Standard, the UN Special Rapporteur on Torture, Professor Manfred Nowak, explained that Obama’s grant of immunity is likely a violation of international law. As a party to the UN Convention Against Torture, the U.S. is obligated to investigate and prosecute U.S. citizens that are believed to have engaged in torture:

STANDARD: CIA torturers are according to U.S. President Obama not to be prosecuted. Is that decision supportable?

NOWAK: Absolutely not. The United States has, like all other Contracting Parties to the UN Convention Against Torture, committed itself to investigate instances of torture and to prosecute all cases in which credible evidence of torture is found.

STANDARD: In other words, by making this announcement, Obama has violated international law?

NOWAK: Correct. It is a violation of binding international treaty law in this case, because this is an international law convention — and it provides unequivocally that states are not merely obligated to make torture a crime, but also to prosecute any incidents of which credible evidence can be found.

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8) In August of 2009, Eric Holder announced a “preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” Glenn Greenwald contextualized the decision as follows:

Holder’s decision does not amount to the appointment of a Special Prosecutor, since a preliminary review is used, as he emphasized, “to gather information to determine whether there is sufficient predication to warrant a full investigation of a matter.” More important, the scope of the “review” is limited at the outset to those who failed to “act in good faith and within the scope of legal guidance” — meaning only those interrogators and other officials who exceeded the torture limits which John Yoo and Jay Bybee approved. Those who, with good faith, tortured within the limits of the OLC memos will “be protected from legal jeopardy” (the full Holder statement is here).

In theory, Holder’s announcement does not foreclose the possibility that DOJ lawyers who authored the torture memos and/or those in the White House who authorized torture will, at some point, be investigated. Strictly speaking, Holder’s announced “review” concerns only those in the intelligence community who conducted interrogations. And by extending immunity only to those who both (a) acted “within the scope of the [OLC] legal guidelines” and (b) ”acted in good faith,” it’s theoretically possible that there is some class of persons who could fall outside the scope of immunity even though they technically complied with the OLC memos: i.e. high-level White House officials and/or DOJ lawyers who had reason to believe that the conduct authorized by the memos was illegal, meaning those who wrote or requested those memos with the deliberate intent to obtain cover for what they knew was criminal behavior. In other words, there are those who complied with the memos, but in bad faith, and are thus are outside the bounds of immunity Holder today defined and ineligible for this immunity. But that’s just theory.

As a practical matter, Holder is consciously establishing as the legal baseline — he’s vesting with sterling legal authority — those warped, torture-justifying DOJ memos. Worse, his pledge of immunity today for those who complied with those memos went beyond mere interrogators and includes everyone, policymakers and lawyers alike: “the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.” Thus, as long as, say, a White House official shows that (a) the only torture methods they ordered were approved by the OLC and (b) they did not know those methods were criminal, then they would be entitled to full-scale immunity under the standard Holder announced today.

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9) In February, 2010, the Justice Department released a report assessing the actions of top lawyers who advised the Bush administration regarding the legality of interrogation techniques. As Eric Lichtblau and Scott Shane reported for the New York Times,

After five years of often bitter internal debate, the Justice Department concluded in a report released Friday that the lawyers who gave legal justification to the Bush administration’s brutal interrogation tactics for terrorism suspects used flawed legal reasoning but were not guilty of professional misconduct.

The report, rejecting harsher sanctions recommended by Justice Department ethics lawyers, brings to a close a pivotal chapter in the debate over the legal limits of the Bush administration’s fight against terrorism and whether its treatment of Qaeda prisoners amounted to torture.

The ethics lawyers, in the Office of Professional Responsibility, concluded that two department lawyers involved in analyzing and justifying waterboarding and other interrogation tactics — Jay S. Bybee, now a federal judge, and John C. Yoo, now a professor at the University of California, Berkeley — had demonstrated “professional misconduct.” It said the lawyers had ignored legal precedents and provided slipshod legal advice to the White House in possible violation of international and federal laws on torture. That report was among the documents made public Friday.

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10) In November, 2010, the Justice Department announced that prosecutions would not be filed following the destruction of videotapes of interrogations. As reported by Mark Mazzetti and Charlie Savage of the New York Times:

Central Intelligence Agency officials will not face criminal charges for the destruction of dozens of videotapes depicting the brutal interrogation of terrorism suspects, the Justice Department said Tuesday.

After a closely watched investigation of nearly three years, the decision by a special federal prosecutor is the latest example of Justice Department officials’ declining to seek criminal penalties for some of the controversial episodes in the C.I.A.’s now defunct detention and interrogation program. The destruction of the tapes, in particular, was seen as so striking that the Bush administration itself launched the special investigation after the action was publicly disclosed.

Government officials said Tuesday that the special prosecutor, John H. Durham, could still decide to charge current and former C.I.A. officers and lawyers with making false statements to a grand jury over the course of the investigation, which began in January 2008.

In addition, the prosecutor has yet to close another aspect of his investigation, focused on the death or abuse of detainees in the hands of C.I.A. officers who used tactics that had not been approved by the Justice Department.

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11) In June, 2011, the Justice Department released the results of the “preliminary investigation” launched in 2009. It was announced that investigations would commence into circumstances surrounding the deaths of two prisoners interrogated by the C.I.A. in Afghanistan and Abu Ghraib. As Peter Finn and Julie Tate reported for The Washington Post,

The decision, announced by Attorney General Eric H. Holder Jr., means continued legal jeopardy for several CIA operatives but at the same time closes the book on inquiries that potentially threatened many others. A federal prosecutor reviewed 101 cases in which agency officers and contractors interrogated suspected terrorists during years of military action after the Sept. 11, 2001, attacks but found cause to pursue criminal cases in only two.

Many of the other suspected terrorists were subjected to harsh interrogation techniques that provoked divisive national debate, with some calling the techniques legal and necessary and others shunning them as government-sanctioned torture.

“On this, my last day as director, I welcome the news that the broader inquiries are behind us,” said a statement from CIA Director Leon Panetta, who will take over as defense secretary on Friday. “We are now finally about to close this chapter of our agency’s history.”

The Justice Department did not say which cases are being investigated, but U.S. officials said they are the death of an Afghan, Gul Rahman, in 2002 at a prison known as the Salt Pit in Afghanistan, and that of an Iraqi, Manadel al-Jamadi, who was questioned by three CIA officers at Abu Ghraib in 2003.

The ACLU criticized the decision. From the same article:

“It is difficult to understand the prosecutor’s conclusion that only those two deaths warrant further investigation,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union. “For a period of several years, and with the approval of the Bush administration’s most senior officials, the CIA operated an interrogation program that subjected prisoners to unimaginable cruelty and violated both international and domestic law. The narrow investigation that Attorney General Holder announced today is not proportionate to the scale and scope of the wrongdoing.”

Of the announcement, Glenn Greenwald wrote:

Over 100 detainees died during U.S. interrogations, dozens due directly to interrogation abuse. Gen. Barry McCaffrey said: ”We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the C.I.A.” Maj. Gen. Antonio Taguba, who oversaw the official investigation into detainee abuse, wrote: ”there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”

Thanks to the Obama DOJ, that is no longer in question. The answer is resoundingly clear: American war criminals, responsible for some of the most shameful and inexcusable crimes in the nation’s history — the systematic, deliberate legalization of a worldwide torture regime — will be fully immunized for those crimes. And, of course, the Obama administration has spent years just as aggressively shielding those war criminals from all other forms of accountability beyond the criminal realm: invoking secrecy and immunity doctrines to prevent their victims from imposing civil liability, exploiting their party’s control of Congress to suppress formal inquiries, and pressuring and coercing other nations not to investigate their own citizens’ torture at American hands.

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12) In March, 2012, Poland’s Prime Minister, Donald Tusk, made statements which some interpreted as an admission that his nation had permitted the U.S. to operate black sites there in 2002 and 2003. As the AP reported:

In a string of revelations and political statements, Polish leaders have come closer than ever to acknowledging that the United States ran a secret interrogation facility for terror suspects in 2002 and 2003 in the Eastern European country.

Some officials recall the fear that prevailed after the Sept. 11, 2001, attacks, and defend the tough stance that former U.S. President George W. Bush took against terrorists.

But the debate is sometimes tinged with a hint of disappointment with Washington, as if Poland’s young democracy had been led astray – ethically and legally – by the superpower that it counts as a key ally, and then left alone to deal with the fallout.

Prime Minister Donald Tusk said Thursday that Poland has become the “political victim” of leaks from U.S. officials that brought to light aspects of the secret rendition program.

In his most forthcoming comments on the matter to date, Tusk said an ongoing investigation into the case is proof of Poland’s democratic credentials and that Poland cannot be counted on in the future in such clandestine enterprises.

“Poland will no longer be a country where politicians – even if they are working arm-in-arm with the world’s greatest superpower – could make some deal somewhere under the table and then it would never see daylight,” said Tusk, who took office four years after the site was shuttered.

“Poland is a democracy where national and international law must be observed,” Tusk said. “This issue must be explained. Let there be no doubt about it either in Poland or on the other side of the ocean.”

To some, it sounded like a long-delayed admission that Poland allowed the U.S. to run the secret site, where terror suspects were subjected to harsh interrogation tactics that human rights advocates consider torture.

“This statement is quite different from any others,” said Adam Bodnar, a human rights lawyer with the Helsinki Foundation in Warsaw. “From the general context, he’s kind of admitting that something is in the air. You can feel that this is an indirect confirmation.”

For years Polish officials and the public treated the idea that the CIA ran a prison in Poland as absurd and highly unlikely – even after the United Nations and the Council of Europe said they had evidence of its existence. Polish officials repeatedly rebuffed international calls for serious investigations. The idea slowly only began to get serious consideration after Polish prosecutors opened an investigation into the matter in 2008.

A new breakthrough came Tuesday when a leading newspaper, Gazeta Wyborcza, reported that prosecutors have charged a former spy chief, Zbigniew Siemiatkowski, for his role in allowing the site. Siemiatkowski was reportedly charged with depriving prisoners of war of their freedom and allowing corporal punishment.

Siemiatkowski has refused to comment, telling The Associated Press he was bound by secrecy laws on the matter. But he did not deny the report.

The issue is hugely sensitive because any Polish leaders who would have cooperated with the U.S. program would have been violating Poland’s constitution, both by giving a foreign power control over part of Polish territory and allowing crimes to take place there.

Any officials who were involved could – in theory – be charged with serious crimes, including crimes against humanity.

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13) In August, 2012, the two cases of detainee death which the Justice Department had started officially investigating the previous year were closed. As Scott Shane reported for the New York Times,

Attorney General Eric H. Holder Jr. announced Thursday that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the C.I.A.

Mr. Holder had already ruled out any charges related to the use of waterboarding and other methods that most human rights experts consider to be torture. His announcement closes a contentious three-year investigation by the Justice Department and brings to an end years of dispute over whether line intelligence or military personnel or their superiors would be held accountable for the abuse of prisoners in the aftermath of the terrorist attacks of Sept. 11, 2001.

The closing of the two cases means that the Obama administration’s limited effort to scrutinize the counterterrorism programs carried out under President George W. Bush has come to an end. Without elaborating, Mr. Holder suggested that the end of the criminal investigation should not be seen as a moral exoneration of those involved in the prisoners’ treatment and deaths…

“It is hugely disappointing that with ample evidence of torture, and documented cases of some people actually being tortured to death, that the Justice Department has not been able to mount a successful prosecution and hold people responsible for these crimes,” said Elisa Massimino, president of Human Rights First. “The American people need to know what was done in their name.”

When the Democratic National Convention begins next week, the party will undoubtedly tout the administration’s successes in fighting al Qaeda, particularly the killing of Al Qaeda founder Osama bin Laden. Four years ago Obama, then a senator from Illinois seeking the mantle of commander-in-chief, promised to “take out” bin Laden, even at the expense of the US relationship with its nominal ally, Pakistan. He did that. But he also promised to “restore our moral standing” in the world. Since taking office, the president has hewed closely to his philosophy of “looking forward,” at least when it comes to officially sanctioned wrongdoing by agents of the state. From here on, American national security officials have little reason to worry about criminal penalties for breaking the law, even if doing so results in the death of another human being.

You can torture a detainee in your custody to death and get away with it. You just can’t talk about it.

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14) On September 19, 2012, the highest court in Italy upheld the previous convictions of 22 members of the C.I.A and one U.S. Air Force pilot – all tried in absentia – for their involvement in the 2003 rendition of cleric Hassan Mustafa Osama Nasr from Milan. As the AP reported:

Italy’s highest criminal court on Wednesday upheld the convictions of 23 Americans in the kidnapping of an Egyptian terror suspect as part of the CIA’s extraordinary rendition program.

The ruling marks the final appeal in the first trial anywhere in the world involving the CIA’s practice of abducting terror suspects and transferring them to third countries where torture is permitted.

The 23 Americans all were convicted in absentia following a three-and-a-half-year trial, and have never been in Italian custody. They risk arrest if they travel to Europe and one of their court-appointed lawyers suggested that the final verdict would open the way for the Italian government to seek their extradition.

Hassan Mustafa Osama Nasr, an Egyptian imam known as Abu Omar, was snatched from a Milan street in 2003 and flown to Egypt for interrogation, where he says he was tortured for seven months. He was resident in Italy at the time of the abduction.

The Italian trial was the first of its kind against the “rendition” flights practiced by the administration of former U.S. President George W. Bush, which have been condemned by human rights groups as a violation of international agreements.

Amnesty International welcomed the decision.

“We have one of the highest courts in a European country upholding convictions of CIA agents for really egregious human rights violations,” the human rights group’s Expert on Counter Terrorism and Human Rights Julia Hall said.

“Our hope is that the United States would… begin to cooperate with people who are trying to reveal the truth about what happened during the Bush era.”

“The Obama administration should take the Italian ruling as a signal that other countries will not let US officials off the hook for torture and illegal rendition,” said Andrea Prasow, senior counterterrorism counsel at Human Rights Watch. “Since the US Justice Department appears entirely unwilling to investigate and prosecute these very serious crimes, other countries should move forward with their own cases against US officials.”

The first stage—and it’s a universal process. It happens in countries emerging from authoritarianism that have had problems with torture. Step one is blame the bad apples. Donald Rumsfeld did that right after the Abu Ghraib scandal was exposed in 2004.

Step two is saying that it was necessary for our national security—unfortunate, perhaps, but necessary to keep us all safe. That was done very articulately by former Vice President Cheney at the time, and he continues to make that argument. He claims that these “enhanced techniques,” as he calls them, i.e. CIA torture, saved thousands, sometimes tens of thousands, sometimes hundreds of thousands of lives. OK?

The third step is the step we just witnessed in President Obama [NOTE: Obama has been shown speaking during a 2009 press conference], saying that, well, whatever might have happened in the past, we need unity as a nation, we need to move forward together into the future. So, the past isn’t germane. We need to put it behind us, not investigate, not prosecute. And that was the position he was taking there.

The fourth stage is one that we’ve been going through for the past year. That’s been political attack by those implicated, under the Bush administration, in either conducting the torture or authorizing the torture. And that’s a political tack seeking not just exoneration, getting away with it, but seeking vindication, saying that not only, you know, was this legal, but it was necessary, it was imperative for our national security. And that’s an argument that the Bush administration made very forcefully when Osama bin Laden was killed in May of 2011. They argued that the enhanced interrogation under the Bush administration led the Navy SEALs to Osama bin Laden. There’s no evidence for that, but they made that argument. And that put pressure on Attorney General Eric Holder to drop the—most of the investigations of CIA abuse. And then, very recently, the two investigations of detainees who were killed in CIA custody have been dropped, as well.

The fifth and final stage is one that’s ongoing right to the present, and that’s rewriting the history, rewriting the past, ripping it apart, without respect to the truth of the matter, and reconstructing it in a way that justifies the torture. And that happened on the 10th anniversary of 9/11 when Dick Cheney brought out his memoirs saying that the use of enhanced techniques on Abu Zubaydah turned this hardened terrorist into—he called him “a fountain of information” that gave information that saved thousands of lives.

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16) Andrew Sullivan, a strong supporter of Obama and an advocate for his re-election, has nevertheless been very critical of the administration’s approach to torture prosecutions. He has described the administration’s conduct in the following ways:

April, 2009: “And so Obama’s refusal to investigate war crimes is itself against the law. And so torture’s cancerous route through the legal and constitutional system continues, contaminating the future as well as the past, rendering the US incapable of upholding Geneva against other nations, because it has violated Geneva itself, and giving to every tyrant on the planet a justification for the torture of prisoners. In this scenario, America becomes a city on a hill, where the rule of law is optional and torture acceptable if parsed into legal memos that do not pass the most basic professional sniff-test. America becomes a banana republic.”

February, 2010: “So I remain convinced that this matter is not over, even though the way in which the DOJ has now softened and protected the clear and political manipulation of the law by lawyers sworn to uphold it remains a travesty, a disgrace, an abomination, another example of how the government treats its own members in ways it would never ever treat anyone else. That Lynndie England went to jail for doing things that John Yoo made legal, and Yoo does not even face disbarment, tells you all you need to know about the current state of justice in America. In the end, the current president and attorney-general have assented to this massive injustice. The responsibility is theirs’. But the arc of history is long. And justice will come in the end. Of that I am sure.”

February, 2010: “The perverse truth is that, in some ways, the Obama administration is in greater violation of Geneva than even the Bush-Cheney administration. The Bush-Cheney administration denied – absurdly – that it ever conducted torture. President Obama has clearly stated on many occasions that it was torture. Geneva requires every government to investigate thoroughly and promptly all such acts of torture and bring the guilty to justice. Cheney could claim there was nothing to investigate – so he was in the clear. Obama, having conceded torture, has no such option.”

September, 2010: “In 2008, many of us supported Obama in part because he seemed to be a rare candidate who understood the awful potential of government-sanctioned torture to harm us in the war against Jihadism, to eviscerate core American values, and to empower the executive to new and unassailable heights in ways the Founders would have been horrified by…Obama as executive quickly co-opted the kind of blanket secrecy and protection of the national security apparatus from the rule of law that plagued us in the Bush-Cheney administration. Yes, torture ended. That matters a huge amount. He will always deserve credit for that. Of course, I have to trust him on this, since there is precious little way for someone outside the government to test this or know this for sure. But Obama’s insistence on protecting every Bush era war criminal and every Bush era war crime from any redress or even scrutiny is a sign both of how cold-blooded he can be, but more, I think, of how powerful the security state now is, how it can protect itself, how it exists independently of any real accountability to anyone, how even the metrics of judging it are beyond the citizen’s reach or understanding…I tried valiantly not to believe this of Holder and Obama for months; I tried to see their legitimate concerns about exposing a war machine when it is still at war; I understand the need for some extraordinary renditions; and the necessity for executive power in emergencies to act swiftly, as the Founders intended. Yes war requires some secrecy. But Obama has gone much further than this now. The cloak of secrecy he is invoking is not protecting national security but protecting war crimes. And this is now inescapably his cloak. He is therefore a clear and knowing accessory to war crimes, and should at some point face prosecution as well, if the Geneva Conventions mean anything any more. This won’t happen in my lifetime, barring a miracle. Because Obama was a test case. If an outsider like him, if a constitutional scholar like him, at a pivotal moment for accountability like the last two years, cannot hold American torturers to account, there is simply no accountability for American torture. When the CIA actually rehires as a contractor someone who held a power-drill against the skull of a prisoner, you know that change from within this system is impossible. The system is too powerful. It protects itself. It makes a mockery of the rule of law. It doesn’t only allow torture; it rewards it.”

April, 2012: “Not all countries are as cowardly, morally compromised and as authoritarian as the US when it comes to investigating claims of torture (as is required under the Geneva Conventions)…”

April, 2012: Bush and Cheney “remain war criminals, and the rule of law in America remains unenforced by the Obama administration on the core issue of torture. But not all politicians are as craven as Obama on this…”

=Topic 2: Why weren’t there more prosecutions of Wall Street bankers responsible for the financial collapse? (Return to Top)

Relevant Facts and Criticisms:

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1) In February, 2011, Matt Taibbi, a contributing editor for Rolling Stonesummed up his feelings on the post-collapse financial industry:

Nobody goes to jail. This is the mantra of the financial-crisis era, one that saw virtually every major bank and financial company on Wall Street embroiled in obscene criminal scandals that impoverished millions and collectively destroyed hundreds of billions, in fact, trillions of dollars of the world’s wealth — and nobody went to jail. Nobody, that is, except Bernie Madoff, a flamboyant and pathological celebrity con artist, whose victims happened to be other rich and famous people.

The rest of them, all of them, got off. Not a single executive who ran the companies that cooked up and cashed in on the phony financial boom — an industrywide scam that involved the mass sale of mismarked, fraudulent mortgage-backed securities — has ever been convicted. Their names by now are familiar to even the most casual Middle American news consumer: companies like AIG, Goldman Sachs, Lehman Brothers, JP Morgan Chase, Bank of America and Morgan Stanley. Most of these firms were directly involved in elaborate fraud and theft. Lehman Brothers hid billions in loans from its investors. Bank of America lied about billions in bonuses. Goldman Sachs failed to tell clients how it put together the born-to-lose toxic mortgage deals it was selling. What’s more, many of these companies had corporate chieftains whose actions cost investors billions — from AIG derivatives chief Joe Cassano, who assured investors they would not lose even “one dollar” just months before his unit imploded, to the $263 million in compensation that former Lehman chief Dick “The Gorilla” Fuld conveniently failed to disclose. Yet not one of them has faced time behind bars.

Instead, federal regulators and prosecutors have let the banks and finance companies that tried to burn the world economy to the ground get off with carefully orchestrated settlements — whitewash jobs that involve the firms paying pathetically small fines without even being required to admit wrongdoing. To add insult to injury, the people who actually committed the crimes almost never pay the fines themselves; banks caught defrauding their shareholders often use shareholder money to foot the tab of justice. “If the allegations in these settlements are true,” says Jed Rakoff, a federal judge in the Southern District of New York, “it’s management buying its way off cheap, from the pockets of their victims.”

Taibbi indicated that regulatory weakness existed before Obama took office:

…[A] veritable mountain of evidence indicates that when it comes to Wall Street, the justice system not only sucks at punishing financial criminals, it has actually evolved into a highly effective mechanism for protecting financial criminals. This institutional reality has absolutely nothing to do with politics or ideology — it takes place no matter who’s in office or which party’s in power.

Taibbi also argued that when it comes to the realm of regulatory aggressiveness, little had changed following Obama’s election:

All of this behavior set the stage for the crash of 2008, when Wall Street exploded in a raging Dresden of fraud and criminality. Yet the SEC and the Justice Department have shown almost no inclination to prosecute those most responsible for the catastrophe — even though they had insiders from the two firms whose implosions triggered the crisis, Lehman Brothers and AIG, who were more than willing to supply evidence against top executives.

He concluded:

As for President Obama, what is there to be said? Goldman Sachs was his number-one private campaign contributor. He put a Citigroup executive in charge of his economic transition team, and he just named an executive of JP Morgan Chase, the proud owner of $7.7 million in Chase stock, his new chief of staff. “The betrayal that this represents by Obama to everybody is just — we’re not ready to believe it,” says [former Lehman Brothers lawyer Oliver] Budde, a classmate of the president from their Columbia days. “He’s really fucking us over like that? Really? That’s really a JP Morgan guy, really?”

Which is not to say that the Obama era has meant an end to law enforcement. On the contrary: In the past few years, the administration has allocated massive amounts of federal resources to catching wrongdoers — of a certain type. Last year, the government deported 393,000 people, at a cost of $5 billion. Since 2007, felony immigration prosecutions along the Mexican border have surged 77 percent; nonfelony prosecutions by 259 percent. In Ohio last month, a single mother was caught lying about where she lived to put her kids into a better school district; the judge in the case tried to sentence her to 10 days in jail for fraud, declaring that letting her go free would “demean the seriousness” of the offenses.

So there you have it. Illegal immigrants: 393,000. Lying moms: one. Bankers: zero. The math makes sense only because the politics are so obvious. You want to win elections, you bang on the jailable class. You build prisons and fill them with people for selling dime bags and stealing CD players. But for stealing a billion dollars? For fraud that puts a million people into foreclosure? Pass. It’s not a crime. Prison is too harsh. Get them to say they’re sorry, and move on. Oh, wait — let’s not even make them say they’re sorry. That’s too mean; let’s just give them a piece of paper with a government stamp on it, officially clearing them of the need to apologize, and make them pay a fine instead. But don’t make them pay it out of their own pockets, and don’t ask them to give back the money they stole. In fact, let them profit from their collective crimes, to the tune of a record $135 billion in pay and benefits last year. What’s next? Taxpayer-funded massages for every Wall Street executive guilty of fraud?

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2) In March, 2011, director Charles Ferguson and Audrey Marrs won an Oscar for Best Documentary after making the film “Inside Job<”. At the awards ceremony, Ferguson began his acceptance speech with the following statement:

Forgive me, I must start by pointing out that three years after our horrific financial crisis caused by financial fraud, not a single financial executive has gone to jail, and that’s wrong.

In a subsequent interview with the Wall Street Journal, Ferguson elaborated:

Well in fact, not only has nobody gone to jail but there haven’t even been any criminal prosecutions. Literally zero under the Obama administration. There have been, to my knowledge, three criminal prosecutions related to the financial crisis. Two were two mid-level Bear Stearns hedge fund managers who were prosecuted for fraud and acquitted. And then one also not very important financial person committed some fraud related to the TARP program and he just plead guilty. But there has been nothing, literally nothing, related to the core activities that caused the crisis…. We know that multiple investment banks sold securities that they themselves or other clients were betting against or were in some cases constructed for them to be able to bet against them. As a practical matter, the idea that all those things and many more, the idea that all those things could have gone on without a single person being criminally liable, that strikes me as implausible to say the least…

When the crisis [was] going on, what laws do you think were broken?

Laws against fraud. If you are dealing with financial products and contracts you have an obligation to tell the truth. And there’s a lot of evidence that there was fraud of various kinds. There was accounting fraud and also some conspiracy laws. People engaged in conspiracy to commit various kinds of financial fraud to conceal size of their losses the defects of the securities they were selling. I think that there was a great deal of fraud in the financial system during the bubble.

Do you feel that the Obama administration is handling the backlash from the crisis in such a way that the actions that led to the economic downturn will be eliminated?

I have to say I don’t have much confidence about that because, first of all if you look at the way that foreclosures have been handled it seems that there has been some very unethical and possibly illegal activity there: and then also the record of the administration in criminal investigation and prosecution. We’re two years into the Obama administration and they haven’t done anything about this. So, I’m quite disturbed.

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3) In April, 2011, Gretchen Morgenson and Louise Story of the New York Times provided added context regarding Wall Street prosecutions:

Whether prosecutors and regulators have been aggressive enough in pursuing wrongdoing is likely to long be a subject of debate. All say they have done the best they could under difficult circumstances.

But several years after the financial crisis, which was caused in large part by reckless lending and excessive risk taking by major financial institutions, no senior executives have been charged or imprisoned, and a collective government effort has not emerged. This stands in stark contrast to the failure of many savings and loan institutions in the late 1980s. In the wake of that debacle, special government task forces referred 1,100 cases to prosecutors, resulting in more than 800 bank officials going to jail. Among the best-known: Charles H. Keating Jr., of Lincoln Savings and Loan in Arizona, and David Paul, of Centrust Bank in Florida.

Former prosecutors, lawyers, bankers and mortgage employees say that investigators and regulators ignored past lessons about how to crack financial fraud.

Morgenson and Story emphasized the nuances of the issue:

Even civil actions by the government have been limited. The Securities and Exchange Commission adopted a broad guideline in 2009 — distributed within the agency but never made public — to be cautious about pushing for hefty penalties from banks that had received bailout money. The agency was concerned about taxpayer money in effect being used to pay for settlements, according to four people briefed on the policy but who were not authorized to speak publicly about it.

But they also focused on particular areas some had claimed were worthy of greater attention:

To be sure, Wall Street’s role in the crisis is complex, and cases related to mortgage securities are immensely technical. Criminal intent in particular is difficult to prove, and banks defend their actions with documents they say show they operated properly.

But legal experts point to numerous questionable activities where criminal probes might have borne fruit and possibly still could.

Investigators, they argue, could look more deeply at the failure of executives to fully disclose the scope of the risks on their books during the mortgage mania, or the amounts of questionable loans they bundled into securities sold to investors that soured.

Prosecutors also could pursue evidence that executives knowingly awarded bonuses to themselves and colleagues based on overly optimistic valuations of mortgage assets — in effect, creating illusory profits that were wiped out by subsequent losses on the same assets. And they might also investigate whether executives cashed in shares based on inside information, or misled regulators and their own boards about looming problems…

Among the few exceptions so far in civil action against senior bankers is a lawsuit filed last month against top executives of Washington Mutual, the failed bank now owned by JPMorgan Chase. The Federal Deposit Insurance Corporation sued Kerry K. Killinger, the company’s former chief executive, and two other officials, accusing them of piling on risky loans to grow faster and increase their compensation. The S.E.C. also extracted a $550 million settlement from Goldman Sachs for a mortgage security the bank built, though the S.E.C. did not name executives in that case.

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4) In May, 2011, Matt Taibbi wrote about a newly released report compiled by the Senate Subcommittee on Investigations. The Subcommittee is chaired by Carl Levin (D-MI).

The goals of this investigation were to construct a public record of the facts in order to deepen the understanding of what happened; identify some of the root causes of the crisis; and provide a factual foundation for the ongoing effort to fortify the country against the recurrence of a similar crisis in the future.

In his article, Taibbi focused specifically on what it revealed about the activities of executives at Goldman Sachs. He wrote:

Thanks to an extraordinary investigative effort by a Senate subcommittee that unilaterally decided to take up the burden the criminal justice system has repeatedly refused to shoulder, we now know exactly what Goldman Sachs executives like Lloyd Blankfein and Daniel Sparks lied about. We know exactly how they and other top Goldman executives, including David Viniar and Thomas Montag, defrauded their clients. America has been waiting for a case to bring against Wall Street. Here it is, and the evidence has been gift-wrapped and left at the doorstep of federal prosecutors, evidence that doesn’t leave much doubt: Goldman Sachs should stand trial.

Taibbi focused on Goldman’s revealed history of betting against (or “shorting”) its own financial products, even while telling clients that the products were sound. (One prominent such deal was known as “Timberwolf,” and another was “Hudson.”) Even more specifically, Taibbi argued that Daniel Sparks, a former top Goldman executive, lied to Senator Levin’s investigatory committee while under oath during a hearing in 2010, claiming that before the crash, Goldman wasn’t betting against assets it owned, even though internal documents reveal that it did. Taibbi also argued that both former executive Joshua Birnbaum and CEO Lloyd Blankfein lied in the same way. If true, all three would be guilty of a crime under federal law.

It wouldn’t be hard for federal or state prosecutors to use the Levin report to make a criminal case against Goldman. I ask Eliot Spitzer what he would do if he were still attorney general and he saw the Levin report. “Once the steam stopped coming out of my ears, I’d be dropping so many subpoenas,” he says. “And I would parse every potential inconsistency between the testimony they gave to Congress and the facts as we now understand them.”

What haunts the Obama administration is what still haunts the country: the stunning lack of accountability for the greed and misdeeds that brought America to its gravest financial crisis since the Great Depression. There has been no legal, moral, or financial reckoning for the most powerful wrongdoers. Nor have there been meaningful reforms that might prevent a repeat catastrophe. Time may heal most wounds, but not these. Chronic unemployment remains a constant, painful reminder of the havoc inflicted on the bust’s innocent victims. As the ghost of Hamlet’s father might have it, America will be stalked by its foul and unresolved crimes until they “are burnt and purged away.”

After the 1929 crash, and thanks in part to the legendary Ferdinand Pecora’s fierce thirties Senate hearings, America gained a Securities and Exchange Commission, the Public Utility Holding Company Act, and the Glass-Steagall Act to forestall a rerun. After the savings-and-loan debacle of the eighties, some 800 miscreants went to jail. But those who ran the central financial institutions of our fiasco escaped culpability (as did most of the institutions). As the indefatigable Matt Taibbi has tabulated, law enforcement on Obama’s watch rounded up 393,000 illegal immigrants last year and zero bankers. The Justice Department’s bally­hooed Operation Broken Trust has broken still more trust by chasing mainly low-echelon, one-off Madoff wannabes. You almost have to feel sorry for the era’s designated Goldman scapegoat, 32-year-old flunky “Fabulous Fab” Fabrice Tourre, who may yet take the fall for everyone else. It’s as if the Watergate investigation were halted after the cops nabbed the nudniks who did the break-in.

Even now, on the heels of Bank of America’s reluctant $8.5 billion settlement with investors who held its mortgage-backed securities, the Obama administration may be handing it and its peers new get-out-of-jail-free cards. With the Department of Justice’s blessing, the Iowa attorney general, Tom Miller, is pushing the 49 other states to sign on to a national financial settlement ending their investigations of the biggest mortgage lenders. What some call a settlement others may find a cover-up. Time reported in April that the lawyer negotiating with Miller for Moynihan’s Bank of America just happened to be a contributor to his 2010 Iowa reelection campaign. If the deal is struck, any truly aggressive state attorneys general, like Eric Schneiderman of New York, will be shut down before they can dig into the full and still mostly uninvestigated daisy chain of get-rich-quick rackets practiced by banks as they repackaged junk mortgages into junk securities.

Obama can win reelection without carrying 10021 or Greenwich in any case. The bigger political problem is that a far larger share of the American electorate views him as a tool of the very fat-cat elite that despises him. Given Obama’s humble background, his history as a mostly liberal Democrat, and his famous résumé as a community organizer, this would also seem a reach. But the president has no one to blame but himself for the caricature. While he has never lusted after money—he’d rather get his hands on the latest novel by Morrison or Franzen—he is an elitist of a certain sort. For all the lurid fantasies of the birthers, the dirty secret of Obama’s background is that the values of Harvard, not of Kenya or Indonesia or Bill Ayers, have most colored his governing style. He falls hard for the best and the brightest white guys.

He stocked his administration with brilliant personnel linked to the bubble: liberals, and especially Ivy League liberals. Nearly three years on, they have taken a toll both on the White House’s image and its policies. Obama arrives at his reelection campaign not merely with a weak performance on Wall Street crime enforcement and reform but also with a scattershot record (at best) of focusing on the main concern of Main Street: joblessness. One is a consequence of the other. His failure to push back against the financial sector, sparing it any responsibility for the economy it tanked, empowered it to roll over his agenda with its own. He has come across as favoring the financial elite over the stranded middle class even if, in his heart of hearts, he does not.

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6) In August, 2011, Gretchen Morgenson reported in the New York Times that New York State Attorney General Eric Schneiderman, who had been opposing a 50-state settlement with banks over mortgage fraud, was being pressured “to drop his opposition.” As Morgenson wrote,

Mr. Schneiderman and top prosecutors in some other states have objected to the proposed settlement with major banks, saying it would restrict their ability to investigate and prosecute wrongdoing in a variety of areas, including the bundling of loans in mortgage securities.

But Mr. Donovan and others in the administration have been contacting not only Mr. Schneiderman but his allies, including consumer groups and advocates for borrowers, seeking help to secure the attorney general’s participation in the deal, these people said. One recipient described the calls from Mr. Donovan, but asked not to be identified for fear of retaliation.

Not surprising, the large banks, which are eager to reach a settlement, have grown increasingly frustrated with Mr. Schneiderman. Bank officials recently discussed asking Mr. Donovan for help in changing the attorney general’s mind, according to a person briefed on those talks.

In an interview on Friday, Mr. Donovan defended his discussions with the attorney general, saying they were motivated by a desire to speed up help for troubled homeowners. But he said he had not spoken to bank officials or their representatives about trying to persuade Mr. Schneiderman to get on board with the deal.

“Eric and I agree on a tremendous amount here,” Mr. Donovan said. “The disagreement is around whether we should wait to settle and resolve the issues around the servicing practices for him — and potentially other A.G.’s and other federal agencies — to complete investigations on the securitization side. He might argue that he has more leverage that way, but our view is we have the immediate opportunity to help a huge number of borrowers to stay in their homes, to help their neighborhoods and the housing market.”

A few days after the Health Care Summit, Summers made his move at a briefing with the president. His “first, do not harm” test had been satisfied, he said. He joined [then-Chair of the Council of Economic Advisers Christina] Romer in support of the president’s belief that a major federal intervention into the banking system was not needed.

Geithner pushed back.

“The confidence in the system is so fragile still,” he said. “The trust is gone. One poor earnings report, a disclosure of a fraud, or a loss of faith in the dealings between one large bank and another – a withdrawal of funds or refusal to clear trades – and it could result in a run, just like Lehman.”

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8) In December, 2011, more questions were raised about how aggressive the administration had been toward Wall Street prosecutions in an essay written by Jeff Connaughton. Connaughton had been chief of staff to a former U.S. Senator, Ted Kaufman (D-DE). Kaufman was the chair of two hearings in the Senate Judiciary Committee concerning prosecutions for financial fraud. The hearings took place in 2009 and 2010.

In his essay, Connaughton first wrote that Obama had been unclear regarding the likelihood of criminality on Wall Street:

Long silent and now contradictory, President Obama needs to deliver a clarifying speech about our financial markets and the rule of law. Speaking in Kansas on December 6, he said, “Too often, we’ve seen Wall Street firms violating major anti-fraud laws because the penalties are too weak and there’s no price for being a repeat offender.” Just five days later on 60 Minutes, he said, “Some of the least ethical behavior on Wall Street wasn’t illegal.” Which is it? Have there been no prosecutions because Wall Street acted legally (albeit unethically)? Or did Wall Street repeatedly violate major anti-fraud laws (and should thus find itself in the dock)?

The President is confusing “legal” with “difficult to prosecute successfully.” The Justice Department’s repeated decisions not to risk losing at trial against Wall Street executives don’t make these person’s actions legal. (If a district attorney can’t prove the actual thief stole your wallet, that doesn’t make stealing legal. It simply means that, regrettably, a malefactor goes unpunished.) As Securities and Exchange Commission Enforcement Director Robert Khuzami said in Senate testimony in 2009, Wall Street perpetrators “are smart people who understand that they are crossing the line” and “are plotting their defense at the same time they’re committing their crime.”

Moreover, the President is misleading us when he says that Wall Street firms violate anti-fraud law because the penalties are too weak. Repeat financial fraudsters don’t pay relatively paltry — and therefore painless — penalties because of statutory caps on such penalties. Rather, regulatory officials, appointed by Obama, negotiated these comparatively trifling fines. This week, the F.D.I.C. settled a suit against Washington Mutual officials for just $64 million, an amount that will be covered mostly by insurance policies WaMu took out on behalf of executives, who themselves will pay just $400,000. And recently a federal judge rejected the S.E.C.’s latest settlement with Citigroup, an action even the Wall Street Journal called “a rebuke of the cozy relationship between regulators and the regulated that too often leaves justice as an orphan.”

Connaughton continued, accusing the administration of “passivity” in the face of potential fraud:

The jury is out (alas, only metaphorically) on whether Wall Street practices that accompanied the financial crisis amounted to criminal fraud. Some legal commentators have concluded that the causes of the crisis were systemic and not the result of malfeasance or conspiracy. The debate about whether practices were illegal or simply unethical will never be resolved because only a jury can render a verdict after weighing the evidence, presented by opposing counsel, for each element of an alleged crime. That said, independent fact-finders like the Financial Crisis Inquiry Commission, the Senate Permanent Committee on Investigations, and the bankruptcy examiner for Lehman Brothers have compiled compelling evidence of what, to many, certainly looks like fraud.

But did the Justice Department’s senior leadership even make targeting high-level fraud a top priority? Did it plan, staff, fund, and direct a thorough, probing investigation of each of the primary potential defendants? While I was working in the Senate, conversations I had with Justice Department officials led me to believe that it didn’t. As the New York Times and New Yorkerhave reported, the Department’s leadership never organized or supported strike-force teams of bank regulators, F.B.I. agents, and federal prosecutors for each of the potential primary defendants and ignored past lessons about how to crack financial fraud. When Senator Ted Kaufman (D-DE) and I met privately with Department officials in September 2009, one of them explained they were dependent on investigators to bring them cases (which typified, I believed, their passive approach). And, for their part, the investigators were receiving no help from bank regulatory agencies (in the 1990s, successful prosecutions after the savings-and-loan scandal hinged on referrals from the responsible supervising agencies, which provided key roadmaps for F.B.I. investigations).

Yes, with financial fraud, criminal intent is difficult to prove, especially when a defendant relied on professional advice from accountants and lawyers (and in some cases may even have been acting with the knowledge of the bank’s regulator, who was apparently more concerned about the bank’s financial soundness than about full disclosure to investors). But we shouldn’t outsource the interpretation of fraud laws to a potential defendant’s accountant and lawyers. And why haven’t prosecutors used provisions in the Sarbanes-Oxley Act, which put in place tough criminal sanctions in the wake of Enron and other cases of massive corporate frauds? In the absence of an aggressive, targeted effort by the Justice Department, we’ll never know whether crimes may have been proved beyond a reasonable doubt.

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9) In February, 2012, 49 states agreed to a $26 billion settlement with top banks after investigations into practices which led to unwarranted foreclosures. However, the agreement has faced criticism, with some arguing that it allowed banks to escape much greater liability for their actions.

Writing for Fire Dog Lake, David Dayden summed up the actions which led to the investigations:

This settlement arises from multiple abuses found in the servicing of loans and the foreclosure process over the past several years. At the height of the housing bubble, banks sliced and diced mortgages and traded them with little regard for the rules following land recording or securitization to such a sloppy extent that they lost track of the true owner on potentially millions of homes. To cover up for this massive failure, banks and their servicing units have been found to have routinely forged, back-dated and fabricated documents at county recorder offices and state courts across the country. Furthermore, they employed “robo-signers,” who signed hundreds of thousands (if not millions) of documents and affidavits without any knowledge of the underlying mortgages. In addition, investigations uncovered massive servicing abuses, including illegal fees charged to borrowers, putting borrowers into foreclosure at the same time as they were working out loan modifications, failing to honor previous settlements where promises were made on modifications, and countless other errors that maximized servicer profits and gouged homeowners. There are also cases of wrongful foreclosures where homeowners have been turned out of their homes without just cause, and servicer-driven foreclosures, where servicers illegally added late fees and applied payments inaccurately, pushing the homeowner into foreclosure. This is but a smattering of the examples of foreclosure fraud and servicer abuse found in a series of interlocking investigations, court depositions, reviews of documents in registers of deeds offices, and homeowner testimonials.

However, he summarized the settlement as follows: “ One thing is clear – the banks relieved themselves of a significant portion of liability at a price they believe they can easily handle.”

1. We’ve now set a price for forgeries and fabricating documents. It’s $2000 per loan. This is a rounding error compared to the chain of title problem these systematic practices were designed to circumvent. The cost is also trivial in comparison to the average loan, which is roughly $180k, so the settlement represents about 1% of loan balances. It is less than the price of the title insurance that banks failed to get when they transferred the loans to the trust. It is a fraction of the cost of the legal expenses when foreclosures are challenged. It’s a great deal for the banks because no one is at any of the servicers going to jail for forgery and the banks have set the upper bound of the cost of riding roughshod over 300 years of real estate law.

Writing for The New American, Bob Ackermann quoted David Stockman, who served as OMB director for Ronald Reagan from 1981 to 1985:

There are 110 million households in this country, 35 million are renters, it does nothing for them. Thirty million own their homes free and clear with no mortgage, it does nothing for them. Of the 50 million with mortgages, 40 million aren’t underwater and have recently refinanced or have no reason to refinance.

So what you are basically doing its picking out a pool of 10 million households with mortgages that are underwater or deeply underwater, and you are basically going to come in and offer some free money and again interfere with the market’s ability to sort this out.

What it will really do is help big banks conveniently get bad mortgages off their books.

This is ultimately…a bailout for JP Morgan and Wells Fargo and other big underwriters of second mortgages and home equity lines.

Like the federal prosecutors that many of you are hoping to – and, no doubt, will – become, they are aggressive. They are committed. And they have proven their willingness to perform the exhaustive, time-consuming, and unglamorous but essential work – which often takes place far from the public eye – that allows us to move our anti-fraud efforts forward. Thanks to them, and to many other key leaders – including Lanny Breuer, the head of the Department’s Criminal Division and yet another Columbia Law alumnus – we’ve found that much of the conduct that led to the financial crisis was unethical and irresponsible. But we also have discovered that some of this behavior – while morally reprehensible – may not necessarily have been criminal.

Believe me, I understand – and I often hear about – the public desire to, as one pundit put it, “see the handcuffs come to Wall Street.” So, let me assure you: whenever and wherever we do uncover evidence of criminal wrongdoing, we will not hesitate to bring prosecutions. When we don’t, we will continue to use other tools available to us – such as civil sanctions – to hold people and institutions accountable.

Our track record makes this clear. And it’s a record I’m proud of. Since the beginning of this Administration, the Justice Department has taken bold, unprecedented steps to address the causes and consequences of our economic crisis – largely through the collaboration made possible by the interagency Financial Fraud Enforcement Task Force. I am honored to chair this initiative. Since President Obama launched it in 2009, the Task Force has been a model of success. It represents the largest coalition ever assembled to combat financial fraud. Not only has it streamlined the investigative and enforcement efforts of multiple agencies and offices, it also has allowed us to make the most of increasingly limited resources – and to recover, and more effectively utilize, precious taxpayer dollars.

So far, this approach is paying dividends. Since its creation, the work of the Task Force has resulted in charges – and sentences – against CEOs, CFOs, corporate owners, board members, presidents, general counsels, and other executives of Wall Street firms, hedge funds, and banks involved in financial-fraud activities.

In just the last six months, the Justice Department has achieved prison sentences of up to 60 years in a variety of cases charging securities fraud, bank fraud, and investment fraud. We obtained a conviction – and record prison sentence – in the largest hedge-fund insider-trading case in U.S. history. And we’ve secured lengthy prison terms for the architects of multimillion-dollar Ponzi schemes involving hundreds of investors.

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11) In May, 2012, Newsweek published an article by Peter J. Boyer and Peter Schweizer. Boyer and Schweizer began by noting statistics concerning the limited number of federal prosecutions for financial fraud:

Strikingly, federal prosecutions overall have risen sharply under Obama, increasing dramatically in such areas as civil rights and health-care fraud. But according to the Transactional Records Access Clearinghouse, a data-gathering organization at Syracuse University, financial-fraud prosecutions by the Department of Justice are at 20-year lows. They’re down 39 percent since 2003, when fraud at Enron and WorldCom led to a series of prosecutions, and are just one third of what they were during the Clinton administration. (The Justice Department says the numbers would be higher if new categories of crime were counted.)

“There hasn’t been any serious investigation of any of the large financial entities by the Justice Department, which includes the FBI,” says William Black, an associate professor of economics and law at the University of Missouri, Kansas City, who, as a government regulator in the 1980s, helped clean up the S&L mess. Black, who is a Democrat, notes that the feds dealt with the S&L crisis with harsh justice, bringing more than a thousand prosecutions, and securing a 90 percent conviction rate. The difference between the government’s response to the two crises, Black says, is a matter of will, and priorities. “You need heads on the pike,” he says. “The first President Bush’s orders were to get the most prominent, nastiest frauds, and put their heads on pikes as a demonstration that there’s a new sheriff in town.”

They then criticized the selection of Eric Holder as Attorney General, due to his past work and its potential to result in conflicts of interest:

Obama delivered heated rhetoric, but his actions signaled different priorities. Had Obama wanted to strike real fear in the hearts of bankers, he might have appointed former special prosecutor Patrick Fitzgerald or some other fire-breather as his attorney general. Instead, he chose Eric Holder, a former Clinton Justice official who, after a career in government, joined the Washington office of Covington & Burling, a top-tier law firm with an elite white-collar defense unit. The move to Covington, and back to Justice, is an example of Washington’s revolving-door ritual, which, for Holder, has been lucrative–he pulled in $2.1 million as a Covington partner in 2008, and $2.5 million (including deferred compensation) when he left the firm in 2009.

Putting a Covington partner–he spent nearly a decade at the firm–in charge of Justice may have sent a signal to the financial community, whose marquee names are Covington clients. Goldman Sachs, JPMorgan Chase, Citigroup, Bank of America, Wells Fargo, and Deutsche Bank are among the institutions that pay for Covington’s legal advice, some of it relating to matters before the Department of Justice.

Boyer and Schweizer noted that investigations done by the SEC, the Senate Permanent Subcommittee on Investigations, and the Financial Crisis Inquiry Commission had all published reports documenting potentially illegal activity, and had requested that the Justise Department open formal investigation into their findings. However, while this occurred,

…Obama’s political operation continued to ask Wall Street for campaign money. A curious pattern developed. A Newsweek examination of campaign finance records shows that, in the weeks before and after last year’s scathing Senate report, several Goldman executives and their families made large donations to Obama’s Victory Fund and related entities, some of them maxing out at the highest individual donation allowed, $35,800, even though 2011 was an electoral off-year. Some of these executives were giving to Obama for the first time…It would be a leap to infer these Goldman contributions were made–or received–as quid pro quo for dropping a criminal investigation. Still, the situation constitutes what one Justice veteran acknowledged is a “bad set of facts.”

Echoing an April, 2012 op-ed authored by Michael Gecan and Arnie Graf, co-directors of the Industrial Areas Foundation, Boyer and Schweizer also critiqued the activity of the Residential Mortgage-Backed Securities Working Group, a new Justice Department body announced by Obama during his 2012 State of the Union address and designed, according to its official description, to investigate “potential false or misleading statements, deception or other misconduct by market participants in the creation, packaging and sale of mortgage-backed securities.” They noted that,

Nearly three months later, it is not clear what, if any, progress the “working group” has made. The unit was only promised 55 investigators, attorneys, and support staff–a tiny fraction of the resources afforded to similar groups investigating the S&L and Enron/WorldCom scandals–and it is not clear that even that commitment has materialized.

It may be, as the attorney general points out, that Wall Street was greedy, stupid, and immoral, without actually breaking any laws. But the powers of the Justice Department are immense, and a more aggressive prosecutor surely could have found cases to make. Black, the UMKC professor, says the conduct could well have violated federal fraud statutes–“securities fraud for false disclosures, wire and mail fraud for making false representations about the quality of the loans and derivatives they were selling, bank fraud for false representations to the regulators.”

The absence of prosecutions, and the fact that the cops on the beat hail from the place that represents the banks, does not sit right with many who hoped Obama would fulfill his promise to hold Big Finance accountable. The left’s frustration fuels the Occupy movement, and chills the Democratic base. And it gives Romney, the career capitalist, an opening he is avidly exploiting.

Commenting on the article, Glenn Greenwald wrote,

This is a vital part of the Obama legacy. The prior decade witnessed the most egregious crimes imaginable by the nation’s most powerful actors: torture and warrantless eavesdropping from political officials (with the aid of corporate giants), and massive fraud from financial elites. None has been held accountable; the opposite is true: the Obama administration has steadfastly protected all of them.

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12) In August, 2012, Eric Holder announced that the Justice Department would not pursue criminal charges against Goldman Sachs in connection to the case of the Fremont Home Loan Trust 2006-E CDO, which had previously been highlighted by Carl Levin’s subcommittee investigation. As Jim Kim wrote for Fierce Finance,

Recall that an investigation by the Senate’s Permanent Subcommittee on Investigations found that Goldman Sachs “designed, marketed, and sold CDOs in ways that created conflicts of interest with the firm’s clients and at times led to the bank’s profiting from the same products that caused substantial losses for its clients.”

The investigative report was referred to the DOJ along with a recommendation by two senators that executives at Goldman Sachs, including CEO Lloyd Blankfein, should be investigated for perjury, pursuant to their testimony in a hearing before the subcommittee.

In a statement, the DOJ said that it had “determined that, based on the law and evidence as they exist at this time, there is not a viable basis to bring a criminal prosecution with respect to Goldman Sachs or its employees in regard to the allegations set forth in the [Levin] report.”

Still, it wasn’t surprising that Holder didn’t pursue criminal charges against Goldman. And that’s not just because Holder has repeatedly proven himself to be a spineless bureaucrat and obsequious political creature masquerading as a cop, and not just because rumors continue to circulate that the Obama administration – supposedly in the interests of staving off market panic – made a conscious decision sometime in early 2009 to give all of Wall Street a pass on pre-crisis offenses.

No, the real reason this wasn’t surprising is that Holder’s decision followed a general pattern that has been coming into focus for years in American law enforcement. Our prosecutors and regulators have basically admitted now that they only go after the most obvious and easily prosecutable cases.

If the offense committed doesn’t fit the exact description in the relevant section of the criminal code, they pass. The only white-collar cases they will bring are absolute slam-dunk situations where some arrogant rogue commits a blatant crime for individual profit in a manner thoroughly familiar to even the non-expert portion of the jury pool/citizenry.

In other words, they’ll take on somebody like Raj Rajaratnam, who stacked his illegal insider trades so brazenly and carelessly that his case almost reads like a finance version of Jeff Dahmer tripping over bodies in his Milwaukee apartment. Or they’ll pursue Bernie Madoff on the tenth or eleventh time he crosses their desk, after years of nonaction, and after he breaks down weeping and confessing. Basically, if someone backs a dump truck up to the DOJ and unloads the entire case, gift-wrapped, a contrite and confessing criminal included, a guy like Eric Holder might, after much agonizing deliberation, decide to prosecute.

But here’s the thing: most of the crimes Wall Street people commit involve highly specific, highly individualized transactions that won’t fit Eric Holder’s bag of cookie-cutter statutory definitions. That is not the same thing as saying they’re not crimes. They are: the crimes of the crisis period were and are very basic crimes like fraud, theft, perjury, and tax evasion, only they’re dressed up in millions of pages of camouflaging verbiage.

IV. ETHICS OF FOREIGN POLICY

Topic 1: How does the administration justify the morality of drone and missile strikes conducted in Afghanistan, Pakistan, Yemen, and other countries around the world? (Return to Top)

Relevant Facts and Criticism:

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1) The Bureau of Investigative Journalism maintains a database of drone strikes in Pakistan, Yemen, and Somalia. That data includes the following statistics:

Under President Obama, there have been at least 292 drone strikes in Pakistan.

Between 2001 and 2012, there were at least 344 total drone strikes in Pakistan, 40 strikes in Pakistan, and between 3 and 9 in Somalia.

Between 2001 and 2012, reports indicated that there were between 474 and 881 civilians killed by drones in Pakistan, between 60 and 163 civilians killed in Yemen, and between 11 and 57 civilians killed in Yemen.

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2) In December, 2009, 21 children and 14 women were reported killed by a U.S. missile that struck an Al Qaeda training camp in Yemen. The missile was armed with cluster munitions. Speaking of the incident in June, 2012, journalist Jeremy Scahill referred to the killings as “mass murder.”

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3) In March, 2011, a drone strike in Waziristan was believed to have killed 40 people. As the BBC reported, “Most of the victims were believed to be civilians attending a tribal meeting near the regional capital, Miranshah.”

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4) In June, 2011, John Brennan delivered a speech outlining the counter-terrorism strategy that President Obama was employing and would continue to use. As the Los Angeles Timesreported, Brennan said the strategy was based around “precision strikes and raids, rather than large land wars, are the most effective way to defeat Al Qaeda.”

During the session, Brennan was asked about the use of, in the Times’s words, “targeted killing.” His response was reported as follows:

Later, when asked whether a policy of targeted killing was appropriate for the United States, Brennan responded that the U.S. is “exceptionally precise and surgical in terms of addressing the terrorist threat. And by that I mean, if there are terrorists who are within an area where there are women and children or others, you know, we do not take such action that might put those innocent men, women and children in danger.”

He added that in the last year, “there hasn’t been a single collateral death because of the exceptional proficiency, precision of the capabilities that we’ve been able to develop.”

The following month, the Bureau of Investigative Journalism issued a study contradicting Brennan’s assertion regarding “collateral death.” As the Bureau reported:

Claims by President Obama’s chief counter-terrorism adviser John Brennan that ‘there hasn’t been a single collateral [civilian] death’ in Pakistan since August 2010 are found to be untrue today, following a major Bureau investigation.

According to Brennan, Barack Obama himself has ‘insisted’ that US drone strikes are ‘exceptionally surgical and precise’ and ‘do not put… innocent men, women and children in danger’.

Yet a detailed examination by the Bureau of 116 CIA ‘secret’ drone strikes in Pakistan since August 2010 has uncovered at least 10 individual attacks in which 45 or more civilians appear to have died.

The Bureau has identified and can provide the family names for, six children among those killed.

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5) In July, 2011, The Guardianreported on the work of Noor Behram, a Pakistani photographer who would take pictures of the aftermath of drone strikes:

…Noor Behram says his painstaking work has uncovered an important – and unreported – truth about the US drone campaign in Pakistan’s tribal region: that far more civilians are being injured or dying than the Americans and Pakistanis admit. The world’s media quickly reports on how many militants were killed in each strike. But reporters don’t go to the spot, relying on unnamed Pakistani intelligence officials. Noor Behram believes you have to go to the spot to figure out whether those killed were really extremists or ordinary people living in Waziristan. And he’s in no doubt.

“For every 10 to 15 people killed, maybe they get one militant,” he said. “I don’t go to count how many Taliban are killed. I go to count how many children, women, innocent people, are killed.”
The drone strikes are a secret programme run by the CIA to assassinate al-Qaida and Taliban extremists using remote, wild Waziristan as a refuge. The CIA does not comment on drones, but privately claims civilian casualties are rare.

The Guardian was unable to independently verify the photographs. Noor Behram’s account of taking the pictures appeared detailed and consistent however. Other anecdotal evidence from Waziristan is conflicting: some insist the drones are accurate, while others strongly disagree.

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6) During a Google Hangout session in January, 2012, President Obama responded to a question concerning, among other things, civilian casualties caused by drone strikes. As the BBC reported:

Asked about the use of drone strikes, which have soared in number during his presidency, Mr Obama said “a lot of these strikes have been in the Fata”, or Pakistan’s Federally Administered Tribal Areas.

The strikes target “al-Qaeda suspects who are up in very tough terrain along the border between Afghanistan and Pakistan”, Mr Obama added.

“For us to be able to get them in another way would involve probably a lot more intrusive military action than the ones we’re already engaging in.”

Mr Obama said drones had “not caused a huge number of civilian casualties”, adding that it was “important for everybody to understand that this thing is kept on a very tight leash”.

A video of the exchange is below:

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7) In February, 2012, the Bureau of Investigative Journalism reported that in Pakistan, U.S. drone strikes had “killed dozens of civilians who had gone to help rescue victims or were attending funerals.” As the Bureau explained:

But research by the Bureau has found that since Obama took office three years ago, between 282 and 535 civilians have been credibly reported as killed including more than 60 children. A three month investigation including eye witness reports has found evidence that at least 50 civilians were killed in follow-up strikes when they had gone to help victims. More than 20 civilians have also been attacked in deliberate strikes on funerals and mourners. The tactics have been condemned by leading legal experts…

The first confirmed attack on rescuers took place in North Waziristan on May 16 2009. According to Mushtaq Yusufzai, a local journalist, Taliban militants had gathered in the village of Khaisor. After praying at the local mosque, they were preparing to cross the nearby border into Afghanistan to launch an attack on US forces. But the US struck first.

A CIA drone fired its missiles into the Taliban group, killing at least a dozen people. Villagers joined surviving Taliban as they tried to retrieve the dead and injured.

But as rescuers clambered through the demolished house the drones struck again. Two missiles slammed into the rubble, killing many more. At least 29 people died in total…

For the Americans the attack was a success. A surprise tactic had resulted in the deaths of many Taliban. But locals say that six ordinary villagers also died that day, identified by Bureau field researchers as Sabir, Ikram, Mohib, Zahid, Mashal and Syed Noor (most people in the area use only one name)…

Naz Modirzadeh, Associate Director of the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University, said killing people at a rescue site may have no legal justification.

‘Not to mince words here, if it is not in a situation of armed conflict, unless it falls into the very narrow area of imminent threat then it is an extra-judicial execution’, she said. ‘We don’t even need to get to the nuance of who’s who, and are people there for rescue or not. Because each death is illegal. Each death is a murder in that case.’…

The Khaisoor incident was not a one-off. Between May 2009 and June 2011, at least fifteen attacks on rescuers were reported by credible news media, including the New York Times, CNN…ABC News and Al Jazeera.

The US government has long maintained, reasonably enough, that a defining tactic of terrorism is to launch a follow-up attack aimed at those who go to the scene of the original attack to rescue the wounded and remove the dead. Morally, such methods have also been widely condemned by the west as a hallmark of savagery. Yet, as was demonstrated yet again this weekend in Pakistan, this has become one of the favorite tactics of the very same US government…
It is telling indeed that the Obama administration now routinely uses tactics in Pakistan long denounced as terrorism when used by others, and does so with so little controversy. Just in the past several months, attacks on funerals of victims have taken place in Yemen (purportedly by al-Qaida) and in Syria (purportedly, though without evidence, by the Assad regime), and such attacks – understandably – sparked outrage. Yet, in the west, the silence about the Obama administration’s attacks on funerals and rescuers is deafening.

But in the areas targeted by the US with these tactics, there is anything but silence. Pakistan’s most popular politician, Imran Khan, has generated intense public support with his scathing denunciations of US drone attacks, and tweeted the following on Sunday: “Shameful & condemnable. Three drone strikes over two days of Eid in FATA. Why do victims remain nameless? We must name all r terror victims.”

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8) In April, 2012, the Washington Postreported that new authorization standards had been put in place for CIA drone strikes:

The United States has begun launching drone strikes against suspected al-Qaeda operatives in Yemen under new authority approved by President Obama that allows the CIA and the military to fire even when the identity of those who could be killed is not known, U.S. officials said.

The policy shift marks a significant expansion of the clandestine drone war against an al-Qaeda affiliate that has seized large ­pieces of territory in Yemen and is linked to a series of terrorist plots against the United States.

U.S. officials said that Obama approved the use of “signature” strikes this month and that the killing of an al-Qaeda operative near the border of Yemen’s Marib province this week was among the first attacks carried out under the new authority.

The decision to give the CIA and the U.S. Joint Special Operations Command (JSOC) greater leeway is almost certain to escalate a drone campaign that has accelerated significantly this year, with at least nine strikes in under four months. The number is about equal to the sum of airstrikes all last year.

The expanded authority will allow the CIA and JSOC to fire on targets based solely on their intelligence “signatures” — patterns of behavior that are detected through signals intercepts, human sources and aerial surveillance, and that indicate the presence of an important operative or a plot against U.S. interests.

Until now, the administration had allowed strikes only against known terrorist leaders who appear on secret CIA and JSOC target lists and whose location can be confirmed.

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9) On May 15, 2012, 8 civilians were reported killed by drone strikes in Yemen.

TAPPER: President Obama recently said that — recently told John Brennan, his counterterrorism adviser at the White House that he wanted a little bit more transparency when it comes to drones, which are the — is one of the approaches that you’re alluding to in Yemen, and of course in Pakistan.

Dennis Blair, the former director of national intelligence wrote the following in “The New York Times,” quote, “As the drone campaign wears on, hatred of America is increasing in Pakistan. American officials may praise the precision of the drone attacks, but in Pakistan, news media accounts of heavy civilian casualties are widely believed. Our reliance on high-tech strikes that pose no risk for our soldiers is bitterly resented in a country that cannot duplicate such feats of warfare without cost to its own troops.”

And “The Times of London” reported last week that the civilian casualties in Yemen as a result of drone strikes have, quote, “emboldened Al Qaeda.”

Is there not a serious risk that this approach to counterterrorism, because of its imprecision, because of its civilian casualties, is creating more enemy than it is killing?

PANETTA: First and foremost, I think this is one of the most precise weapons that we have in our arsenal. Number two, what is our responsibility here? Our responsibility is to defend and protect the United States of America.

There are those who have no other intent but to attack this country. We saw three potential bombers that were trying to get on planes to come here and attack this country. We’ve seen past attacks taking place. We’ve seen those that continue to – to indicate that they’re planning every day to try to attack this country.

We have got to defend the United States of America. That’s our first responsibility. And using the operations that we have, using the systems that we have, using the weapons that we have, is absolutely essential to our ability to defend Americans. That’s what counts, and that’s what we’re doing.

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11) On May 29, 2012, Scott Shane and Jo Becker’s article documenting the “kill list” maintained by the White House included a discussion of civilian deaths caused by drones. It also revealed the accounting method by which the administration differentiates between “civilians” and “militants.”

Just days after taking office, the president got word that the first strike under his administration had killed a number of innocent Pakistanis. “The president was very sharp on the thing, and said, ‘I want to know how this happened,’ “ a top White House adviser recounted.

In response to his concern, the C.I.A. downsized its munitions for more pinpoint strikes. In addition, the president tightened standards, aides say: If the agency did not have a “near certainty” that a strike would result in zero civilian deaths, Mr. Obama wanted to decide personally whether to go ahead.

The president’s directive reinforced the need for caution, counterterrorism officials said, but did not significantly change the program. In part, that is because “the protection of innocent life was always a critical consideration,” said Michael V. Hayden, the last C.I.A. director under President George W. Bush.

It is also because Mr. Obama embraced a disputed method for counting civilian casualties that did little to box him in. It in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.

Counterterrorism officials insist this approach is one of simple logic: people in an area of known terrorist activity, or found with a top Qaeda operative, are probably up to no good. “Al Qaeda is an insular, paranoid organization — innocent neighbors don’t hitchhike rides in the back of trucks headed for the border with guns and bombs,” said one official, who requested anonymity to speak about what is still a classified program.

This counting method may partly explain the official claims of extraordinarily low collateral deaths. In a speech last year Mr. Brennan, Mr. Obama’s trusted adviser, said that not a single noncombatant had been killed in a year of strikes. And in a recent interview, a senior administration official said that the number of civilians killed in drone strikes in Pakistan under Mr. Obama was in the “single digits” — and that independent counts of scores or hundreds of civilian deaths unwittingly draw on false propaganda claims by militants.

But in interviews, three former senior intelligence officials expressed disbelief that the number could be so low. The C.I.A. accounting has so troubled some administration officials outside the agency that they have brought their concerns to the White House. One called it “guilt by association” that has led to “deceptive” estimates of civilian casualties.

“It bothers me when they say there were seven guys, so they must all be militants,” the official said. “They count the corpses and they’re not really sure who they are.”

The article also discussed the role drone strikes might be having on the recruitment of new terrorists:

But the strikes that have eviscerated Al Qaeda — just since April, there have been 14 in Yemen, and 6 in Pakistan — have also tested both men’s commitment to the principles they have repeatedly said are necessary to defeat the enemy in the long term. Drones have replaced Guantánamo as the recruiting tool of choice for militants; in his 2010 guilty plea, Faisal Shahzad, who had tried to set off a car bomb in Times Square, justified targeting civilians by telling the judge, “When the drones hit, they don’t see children.”

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12) In June 3, 2012, The Guardianreported that a drone attack had killed 10 mourners in Pakistan who were at the funeral of a militant commander.

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13) On June 14, 2012, 26 members of Congress co-signed a letter to President Obama asking him to “explain the process by which ‘signature’ strikes are authorized and executed; mechanisms used by the CIA and JSOC to ensure such killings are legal; the nature of follow-up that is conducted when civilians are killed or injured; and the mechanisms that ensure civilian casualty numbers are collected, tracked, and analyzed.”

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14) In September, 2012, a drone strike against suspected members in Al Qaeda near Rada, Yemen killed 13 civilians.

”This was one of the very few times when our target was completely missed. It was a mistake, but we hope it will not hurt our anti-terror efforts in the region,” a senior Yemeni Defense Ministry official told CNN. The official asked not to be named because of the sensitivity of the issue.

In the United States, the dominant narrative about the use of drones in Pakistan is of a surgically precise and effective tool that makes the US safer by enabling “targeted killing” of terrorists, with minimal downsides or collateral impacts.

This narrative is false.

Following nine months of intensive research—including two investigations in Pakistan,
more than 130 interviews with victims, witnesses, and experts, and review of thousands
of pages of documentation and media reporting—this report presents evidence of the
damaging and counterproductive effects of current US drone strike policies. Based on
extensive interviews with Pakistanis living in the regions directly affected, as well as
humanitarian and medical workers, this report provides new and firsthand testimony
about the negative impacts US policies are having on the civilians living under drones.

Real threats to US security and to Pakistani civilians exist in the Pakistani border areas
now targeted by drones. It is crucial that the US be able to protect itself from terrorist
threats, and that the great harm caused by terrorists to Pakistani civilians be addressed.
However, in light of significant evidence of harmful impacts to Pakistani civilians and to
US interests, current policies to address terrorism through targeted killings and drone
strikes must be carefully re-evaluated.

It is essential that public debate about US policies take the negative effects of current
policies into account.

The report went on to make four central points:

”First, while civilian casualties are rarely acknowledged by the US government, there is significant evidence that US drone strikes have injured and killed civilians.”

”Second, US drone strike policies cause considerable and under-accounted for harm to the daily lives of ordinary civilians, beyond death and physical injury. Drones hover twenty-four hours a day over communities in northwest Pakistan, striking homes, vehicles, and public
spaces without warning. Their presence terrorizes men, women, and children, giving rise to anxiety and psychological trauma among civilian communities.”

”Third, publicly available evidence that the strikes have made the US safer overall is ambiguous at best. The strikes have certainly killed alleged combatants and disrupted armed actor networks. However, serious concerns about the efficacy and counter-productive nature of drone strikes have been raised. The number of “high-level” targets killed as a percentage of total casualties is extremely low—estimated at just 2%. Furthermore, evidence suggests that US strikes have facilitated recruitment to violent non-state armed groups, and motivated further violent attacks.”

”Fourth, current US targeted killings and drone strike practices undermine respect for the rule of law and international legal protections and may set dangerous precedents. This report casts doubt on the legality of strikes on individuals or groups not linked to the terrorist attacks of September 11, 2011, and who do not pose imminent threats to the US. The US government’s failure to ensure basic transparency and accountability in its targeted killing policies, to provide necessary details about its targeted killing program, or adequately to set out the legal factors involved in decisions to strike hinders necessary democratic debate about a key aspect of US foreign and national security policy.”

The following conclusion was offered:

In light of these concerns, this report recommends that the US conduct a fundamental re-evaluation of current targeted killing practices, taking into account all available evidence, the concerns of various stakeholders, and the short and long-term costs and benefits. A significant rethinking of current US targeted killing and drone strike policies is long overdue. US policy-makers, and the American public, cannot continue to ignore evidence of the civilian harm and counterproductive impacts of US targeted killings and drone strikes in Pakistan.

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16) Commenting on the report on September 25, Conor Friesdorf of The Atlanticwrote:

Do you remember how it felt in America on 9/11?

The humanitarian worker does. He was in New York City. “I remember people crying in the streets,” he says. “People were afraid about what might happen next. People didn’t know if there would be another attack. There was tension in the air. This is what it is like.” He’s describing life today where regular U.S. drone strikes happen. “It is a continuous tension, a feeling of continuous uneasiness. We are scared,” he laments. “You wake up with a start to every noise.”

As a Western aid worker, he is far safer than most, and still he is frightened. It is much worse for the innocent Pakistani men, women and children in tribal areas. They are trapped. Terrified. Powerless.

Remember how you felt on 9/11? Every day, U.S. foreign policy makes innocent people feel even worse.

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Also on September 25, The Independentnoted the report’s highlighting of “double-tap” drone strikes:

More and more, while the overall frequency of strikes has fallen since a Nato attack in 2011 killed 24 Pakistani soldiers and strained US-Pakistan relations, initial strikes are now followed up by further missiles in a tactic which lawyers and campaigners say is killing an even greater number of civilians. The tactic has cast such a shadow of fear over strike zones that rescuers often wait for hours before daring to visit the scene of an attack.

“These strikes are becoming much more common,” Mirza Shahzad Akbar, a Pakistani lawyer who represents victims of drone strikes, told The Independent. “In the past it used to be a one-off, every now and then. Now almost every other attack is a double tap. There is no justification for it.”

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17) On September 27, Pakistani Foreign Minister Hina Rabbani Khar told a gathering at the Asia Society in New York that while Pakistan supported America’s efforts to target “terrorists,” its use of drones was “illegal” and fostered anti-American sentiment among the Pakistani population:

“What the drones are trying to achieve, we may not disagree. We do not disagree. If they’re going for terrorists — we do not disagree,” she said.

“But we have to find ways which are lawful, which are legal.” “The use of unilateral strikes on Pakistani territory is illegal,” she said.

“It is illegal and it is unlawful.” Asked during her address to the Asia Society why polls find that anti-American sentiment in Pakistan is among the world’s highest, Khar answered with one word: “Drones.”

According to Khar, Pakistan’s government needs to build popular support for its own efforts to crush armed militant groups, but this is impossible as long as the war is viewed as US interference.

“As the drones fly over the territory of Pakistan, it becomes an American war and the whole logic of this being our fight, in our own interest, is immediately put aside and again it is a war imposed on us,” she said.

Ignoring Pakistani opposition to the drones, she said, is “about choosing to win the battle at the cost of the war. These are battles. You get one terrorist, two terrorists, fine. But are you winning the war?”

=Topic 2: 2) How does the administration justify American military fatalities in Afghanistan? (Return to Top)

Relevant Facts:

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1) At the 2012 Democratic National Convention, Joe Biden’s speech included an accounting of the number of troops killed and injured since September 11, 2001:

A future where we fulfill the only truly sacred obligation we have as a nation — the only truly sacred obligation we have is to prepare those who we send to war and care for them when they come home from war. And tonight — tonight I want to acknowledge — I want to acknowledge as we should every night the incredible debt we owe to the family of those 6,473 fallen angels, and those 49,746 wounded. Thousands critically. Thousands who will need our help for the rest of their lives. Folks, we never — we must never ever forget their sacrifice, and always keep them in our care and in our prayers.

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2) Between the time President Obama assumed office and September 15, 2012, 1,476 U.S. troops were killed in Afghanistan.

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1) In August, 2012, the New York Times reported on the extent of ice melt currently visible in the Arctic:

The amount of sea ice in the Arctic has fallen to the lowest level on record, a confirmation of the drastic warming in the region and a likely harbinger of larger changes to come.

Satellites tracking the extent of the sea ice found over the weekend that it covered about 1.58 million square miles, or less than 30 percent of the Arctic Ocean’s surface, scientists said. That is only slightly below the previous record low, set in 2007, but with weeks still to go in the summer melting season, it is clear that the record will be beaten by a wide margin.

The National Snow and Ice Data Center, a government-sponsored research agency in Boulder, Colo., announced the findings on Monday in collaboration with NASA. The amount of sea ice in the summer has declined more than 40 percent since satellite tracking began in the late 1970s, a trend that most scientists believe is primarily a consequence of the human release of greenhouse gases.

“It’s hard even for people like me to believe, to see that climate change is actually doing what our worst fears dictated,” said Jennifer A. Francis, a Rutgers University scientist who studies the effect of sea ice on weather patterns. “It’s starting to give me chills, to tell you the truth.”

Scientific forecasts based on computer modeling have long suggested that a time will come when the Arctic will be completely free of ice in the summer, perhaps by the middle of the century. This year’s prodigious melting is lending credibility to more pessimistic analyses that that moment may come much sooner, perhaps by the end of this decade.

“It’s an example of how uncertainty is not our friend when it comes to climate-change risk,” said Michael E. Mann, a climate scientist at Pennsylvania State University. “In this case, the models were almost certainly too conservative in the changes they were projecting, probably because of important missing physics.”…
The pace of that decline seems to be accelerating. But scientists are somewhat cautious in their predictions, given that sea ice is prone to natural variability. They have only a 33-year record of careful satellite observations, and before that, only sketchy data from maps and other historical sources.

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2) In mid-September, the Huffington Postreported that, “on Sept. 16, Arctic ice covered just 1.32 million square miles — the lowest extent ever recorded. This minimum is 49 percent below the 1979 average, when satellite records began.” This discovery was also based on data collected by the National Snow and Ice Data Center.

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3) Also in September, the New York Timesreported on opportunities for mineral exploitation being opened up by melting arctic ice:

NUUK, Greenland — With Arctic ice melting at record pace, the world’s superpowers are increasingly jockeying for political influence and economic position in outposts like this one, previously regarded as barren wastelands.

At stake are the Arctic’s abundant supplies of oil, gas and minerals that are, thanks to climate change, becoming newly accessible along with increasingly navigable polar shipping shortcuts. This year, China has become a far more aggressive player in this frigid field, experts say, provoking alarm among Western powers…

At one point this summer, 97 percent of the surface of Greenland’s massive ice sheet was melting. At current rates, Arctic waters could be ice-free in summer by the end of the decade, scientists say.

“Things are happening much faster than what any scientific model predicted,” said Dr. Morten Rasch, who runs the Greenland Ecosystem Monitoring program at Aarhus University in Denmark.

4) In August, 2012, environmentalist Bill McKibben authored an article for Rolling Stone. McKibben is the co-founder and Chairman of 350.org, an organization describing its work as “building a global grassroots movement to solve the climate crisis.”

His piece, entitled “Global Warming’s Terrifying New Math,” attempts to boil current climate change science down to three key numbers. Those three numbers are presented as follows:

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1. Two degrees Celsius – McKibben writes that the non-binding “Copenhagen Accord” which emerged out of 2009’s Copenhagen climate change conference called for capping the average global temperature increase at 2 degrees Celsius:

The accord did contain one important number, however. In Paragraph 1, it formally recognized “the scientific view that the increase in global temperature should be below two degrees Celsius.” And in the very next paragraph, it declared that “we agree that deep cuts in global emissions are required… so as to hold the increase in global temperature below two degrees Celsius.” By insisting on two degrees – about 3.6 degrees Fahrenheit – the accord ratified positions taken earlier in 2009 by the G8, and the so-called Major Economies Forum. It was as conventional as conventional wisdom gets. The number first gained prominence, in fact, at a 1995 climate conference chaired by Angela Merkel, then the German minister of the environment and now the center-right chancellor of the nation.

McKibben also notes the following:

Some context: So far, we’ve raised the average temperature of the planet just under 0.8 degrees Celsius, and that has caused far more damage than most scientists expected. (A third of summer sea ice in the Arctic is gone, the oceans are 30 percent more acidic, and since warm air holds more water vapor than cold, the atmosphere over the oceans is a shocking five percent wetter, loading the dice for devastating floods.) Given those impacts, in fact, many scientists have come to think that two degrees is far too lenient a target.

Scientists estimate that humans can pour roughly 565 more gigatons of carbon dioxide into the atmosphere by midcentury and still have some reasonable hope of staying below two degrees. (“Reasonable,” in this case, means four chances in five, or somewhat worse odds than playing Russian roulette with a six-shooter.)…

How good are these numbers? No one is insisting that they’re exact, but few dispute that they’re generally right. The 565-gigaton figure was derived from one of the most sophisticated computer-simulation models that have been built by climate scientists around the world over the past few decades. And the number is being further confirmed by the latest climate-simulation models currently being finalized in advance of the next report by the Intergovernmental Panel on Climate Change. “Looking at them as they come in, they hardly differ at all,” says Tom Wigley, an Australian climatologist at the National Center for Atmospheric Research. “There’s maybe 40 models in the data set now, compared with 20 before. But so far the numbers are pretty much the same. We’re just fine-tuning things. I don’t think much has changed over the last decade.” William Collins, a senior climate scientist at the Lawrence Berkeley National Laboratory, agrees. “I think the results of this round of simulations will be quite similar,” he says. “We’re not getting any free lunch from additional understanding of the climate system.”

This number is the scariest of all – one that, for the first time, meshes the political and scientific dimensions of our dilemma. It was highlighted last summer by the Carbon Tracker Initiative, a team of London financial analysts and environmentalists who published a report in an effort to educate investors about the possible risks that climate change poses to their stock portfolios. The number describes the amount of carbon already contained in the proven coal and oil and gas reserves of the fossil-fuel companies, and the countries (think Venezuela or Kuwait) that act like fossil-fuel companies. In short, it’s the fossil fuel we’re currently planning to burn. And the key point is that this new number – 2,795 – is higher than 565. Five times higher.

The Carbon Tracker Initiative – led by James Leaton, an environmentalist who served as an adviser at the accounting giant PricewaterhouseCoopers – combed through proprietary databases to figure out how much oil, gas and coal the world’s major energy companies hold in reserve. The numbers aren’t perfect – they don’t fully reflect the recent surge in unconventional energy sources like shale gas, and they don’t accurately reflect coal reserves, which are subject to less stringent reporting requirements than oil and gas. But for the biggest companies, the figures are quite exact: If you burned everything in the inventories of Russia’s Lukoil and America’s ExxonMobil, for instance, which lead the list of oil and gas companies, each would release more than 40 gigatons of carbon dioxide into the atmosphere.

Which is exactly why this new number, 2,795 gigatons, is such a big deal. Think of two degrees Celsius as the legal drinking limit – equivalent to the 0.08 blood-alcohol level below which you might get away with driving home. The 565 gigatons is how many drinks you could have and still stay below that limit – the six beers, say, you might consume in an evening. And the 2,795 gigatons? That’s the three 12-packs the fossil-fuel industry has on the table, already opened and ready to pour.

We have five times as much oil and coal and gas on the books as climate scientists think is safe to burn. We’d have to keep 80 percent of those reserves locked away underground to avoid that fate. Before we knew those numbers, our fate had been likely. Now, barring some massive intervention, it seems certain.

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In his article, McKibben also takes stock of current emission rates:

In fact, study after study predicts that carbon emissions will keep growing by roughly three percent a year – and at that rate, we’ll blow through our 565-gigaton allowance in 16 years, around the time today’s preschoolers will be graduating from high school.

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McKibben’s argues that the corporate bottom lines of major energy companies run contrary to efforts to mitigate climate change:

If you told Exxon or Lukoil that, in order to avoid wrecking the climate, they couldn’t pump out their reserves, the value of their companies would plummet. John Fullerton, a former managing director at JP Morgan who now runs the Capital Institute, calculates that at today’s market value, those 2,795 gigatons of carbon emissions are worth about $27 trillion. Which is to say, if you paid attention to the scientists and kept 80 percent of it underground, you’d be writing off $20 trillion in assets. The numbers aren’t exact, of course, but that carbon bubble makes the housing bubble look small by comparison. It won’t necessarily burst – we might well burn all that carbon, in which case investors will do fine. But if we do, the planet will crater. You can have a healthy fossil-fuel balance sheet, or a relatively healthy planet – but now that we know the numbers, it looks like you can’t have both. Do the math: 2,795 is five times 565. That’s how the story ends.

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He is also critical of the actions taken thus far by the Obama administration, as well as by administrations the world over:

…Barack Obama, for instance, campaigned more aggressively about climate change than any president before him – the night he won the nomination, he told supporters that his election would mark the moment “the rise of the oceans began to slow and the planet began to heal.” And he has achieved one significant change: a steady increase in the fuel efficiency mandated for automobiles. It’s the kind of measure, adopted a quarter-century ago, that would have helped enormously. But in light of the numbers I’ve just described, it’s obviously a very small start indeed.

At this point, effective action would require actually keeping most of the carbon the fossil-fuel industry wants to burn safely in the soil, not just changing slightly the speed at which it’s burned. And there the president, apparently haunted by the still-echoing cry of “Drill, baby, drill,” has gone out of his way to frack and mine. His secretary of interior, for instance, opened up a huge swath of the Powder River Basin in Wyoming for coal extraction: The total basin contains some 67.5 gigatons worth of carbon (or more than 10 percent of the available atmospheric space). He’s doing the same thing with Arctic and offshore drilling; in fact, as he explained on the stump in March, “You have my word that we will keep drilling everywhere we can… That’s a commitment that I make.” The next day, in a yard full of oil pipe in Cushing, Oklahoma, the president promised to work on wind and solar energy but, at the same time, to speed up fossil-fuel development: “Producing more oil and gas here at home has been, and will continue to be, a critical part of an all-of-the-above energy strategy.” That is, he’s committed to finding even more stock to add to the 2,795-gigaton inventory of unburned carbon.

Sometimes the irony is almost Borat-scale obvious: In early June, Secretary of State Hillary Clinton traveled on a Norwegian research trawler to see firsthand the growing damage from climate change. “Many of the predictions about warming in the Arctic are being surpassed by the actual data,” she said, describing the sight as “sobering.” But the discussions she traveled to Scandinavia to have with other foreign ministers were mostly about how to make sure Western nations get their share of the estimated $9 trillion in oil (that’s more than 90 billion barrels, or 37 gigatons of carbon) that will become accessible as the Arctic ice melts. Last month, the Obama administration indicated that it would give Shell permission to start drilling in sections of the Arctic.

Almost every government with deposits of hydrocarbons straddles the same divide. Canada, for instance, is a liberal democracy renowned for its internationalism – no wonder, then, that it signed on to the Kyoto treaty, promising to cut its carbon emissions substantially by 2012. But the rising price of oil suddenly made the tar sands of Alberta economically attractive – and since, as NASA climatologist James Hansen pointed out in May, they contain as much as 240 gigatons of carbon (or almost half of the available space if we take the 565 limit seriously), that meant Canada’s commitment to Kyoto was nonsense. In December, the Canadian government withdrew from the treaty before it faced fines for failing to meet its commitments.

The same kind of hypocrisy applies across the ideological board: In his speech to the Copenhagen conference, Venezuela’s Hugo Chavez quoted Rosa Luxemburg, Jean-Jacques Rousseau and “Christ the Redeemer,” insisting that “climate change is undoubtedly the most devastating environmental problem of this century.” But the next spring, in the Simon Bolivar Hall of the state-run oil company, he signed an agreement with a consortium of international players to develop the vast Orinoco tar sands as “the most significant engine for a comprehensive development of the entire territory and Venezuelan population.” The Orinoco deposits are larger than Alberta’s – taken together, they’d fill up the whole available atmospheric space.

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McKibben argues that a price must be placed on carbon emissions. To make that politically feasible, a new public campaign would need to begin:

So: the paths we have tried to tackle global warming have so far produced only gradual, halting shifts. A rapid, transformative change would require building a movement, and movements require enemies. As John F. Kennedy put it, “The civil rights movement should thank God for Bull Connor. He’s helped it as much as Abraham Lincoln.” And enemies are what climate change has lacked.

But what all these climate numbers make painfully, usefully clear is that the planet does indeed have an enemy – one far more committed to action than governments or individuals. Given this hard math, we need to view the fossil-fuel industry in a new light. It has become a rogue industry, reckless like no other force on Earth. It is Public Enemy Number One to the survival of our planetary civilization. “Lots of companies do rotten things in the course of their business – pay terrible wages, make people work in sweatshops – and we pressure them to change those practices,” says veteran anti-corporate leader Naomi Klein, who is at work on a book about the climate crisis. “But these numbers make clear that with the fossil-fuel industry, wrecking the planet is their business model. It’s what they do.”

McKibben advocates for the development and employment of “moral outrage” leading to a divestment campaign:

Once, in recent corporate history, anger forced an industry to make basic changes. That was the campaign in the 1980s demanding divestment from companies doing business in South Africa. It rose first on college campuses and then spread to municipal and state governments; 155 campuses eventually divested, and by the end of the decade, more than 80 cities, 25 states and 19 counties had taken some form of binding economic action against companies connected to the apartheid regime. “The end of apartheid stands as one of the crowning accomplishments of the past century,” as Archbishop Desmond Tutu put it, “but we would not have succeeded without the help of international pressure,” especially from “the divestment movement of the 1980s.”

The fossil-fuel industry is obviously a tougher opponent, and even if you could force the hand of particular companies, you’d still have to figure out a strategy for dealing with all the sovereign nations that, in effect, act as fossil-fuel companies. But the link for college students is even more obvious in this case. If their college’s endowment portfolio has fossil-fuel stock, then their educations are being subsidized by investments that guarantee they won’t have much of a planet on which to make use of their degree. (The same logic applies to the world’s largest investors, pension funds, which are also theoretically interested in the future – that’s when their members will “enjoy their retirement.”) “Given the severity of the climate crisis, a comparable demand that our institutions dump stock from companies that are destroying the planet would not only be appropriate but effective,” says Bob Massie, a former anti-apartheid activist who helped found the Investor Network on Climate Risk. “The message is simple: We have had enough. We must sever the ties with those who profit from climate change – now.”…

If people come to understand the cold, mathematical truth – that the fossil-fuel industry is systematically undermining the planet’s physical systems – it might weaken it enough to matter politically. Exxon and their ilk might drop their opposition to a fee-and-dividend solution; they might even decide to become true energy companies, this time for real.

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During an email exchange with John V. Santore, McKibben was asked what questions he would ask the respective presidential campaigns regarding their approach to climate change. He said he would ask the Romney campaign two questions already posted on the 350.org website, specifically:

1) Do you disagree with the scientific consensus that humans are warming the planet?
2) If not, what do you plan to do to solve the climate crisis if you are elected President?

Regarding the Obama campaign, McKibben wrote that, “Since Obama is already on board worried about climate change, I’d ask him how he squares his plans with the numbers in [the above] analysis.”

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Finally, in that same email exchange, McKibben was asked to comment on the energy plans of both Romney and Obama in light of his article. “Neither seem to make much sense with these numbers in mind,” he wrote. “Both are committed to more exploration and drilling and mining, which if you accept the analysis above doesn’t make much sense–it’s adding more carbon to the inventory we can’t burn safely.”

President Obama’s campaign energy plan touts the administration’s development of renewable energy like wind and solar. His administration has also funded the development of renewable energy, citing the mitigation of climate change as a reason for doing so. However, Obama’s campaign also calls for an “All of the Above” approach that includes increased use of domestically recovered oil, coal, and natural gas. For example, the campaign notes positively that “oil production is at an eight-year high, and we are less reliant on foreign oil than at any time in the last 16 years.”

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In September, 2012, Obama released the following statement regarding climate change, as given to ScienceDebate.org and reported by the New York Times

Mr. Obama called it “one of the biggest issues of this generation” but stopped short of calling for a cap and trade system or other broad national policy for reducing greenhouse gas emissions, something that he had favored during the 2008 campaign. He said his administration had set stricter limits on emissions from vehicles, invested billions in clean energy research and proposed the first limits on carbon dioxide emissions from coal-fired power plants. He also said that the United States was leading international negotiations on climate change, although those talks have so far had little impact on greenhouse gas levels worldwide.

Mr. Romney, whose views – or at least, his language – on climate change have shifted somewhat over the years, gave one of his most forceful statements on the question yet. “I am not a scientist myself, but my best assessment of the data is that the world is getting warmer, that human activity contributes to that warming and that policymakers should therefore consider the risk of negative consequences,” he wrote.

“However, there remains a lack of scientific consensus on the issue – on the extent of the warming, the extent of the human contribution and the severity of the risk – and I believe we must support continued debate and investigation within the scientific community.”

That is a distinct shift from last October, when Mr. Romney said: “We don’t know what’s causing climate change on this planet. And the idea of spending trillions and trillions of dollars to try to reduce CO2 emissions is not the right course for us.”

Andrea Saul, a Romney spokeswoman, said on Wednesday that there was no inconsistency between his current statement and his October comment. “Nothing he said in October is inconsistent with his position,” she wrote in an e-mail message. “He believes it’s occurring, and that human activity contributes to it, but he doesn’t know to what extent.”

In his statement to the science group, Mr. Romney criticized the president’s approach to global warming, saying that when Congress rejected his cap and trade proposal, Mr. Obama proposed federal regulations that would bankrupt the coal industry, raise manufacturing costs and drive jobs overseas. He was also critical of the president’s international efforts, saying that the United States has done nothing to curb emissions in the developing world and that unilateral action by this country would simply shift manufacturing to nations with looser environmental laws.

Mr. Romney said he supported government financing for clean energy technology development and a reduction in regulation to allow faster deployment of new and existing energy sources, including nuclear power.

Romney’s campaign website doesn’t mention climate change, and instead calls for “genuine support for increased energy production, a more rational approach to regulation, and a government that facilitates private-sector-led development of new energy technologies by focusing on funding research and removing barriers, rather than chasing fads and picking winners and losers.”

In the same email exchange mentioned above, McKibben provided additional sourcing for his numbers, referencing a paper entitled “Unburnable Carbon” which was produced by the Carbon Tracker Initiative, an organization describing itself as “ a non-profit company established by its directors to align the capital markets with efforts to tackle climate change.” That paper, in turn, cited a study published in Nature authored by the Potsdam Institute for Climate Impact Research.

In an effort to further evaluate McKibben’s analysis, several dozen professors from five of the nation’s top collegiate environmental science programs were contacted, and asked the following two questions:

1) Are you familiar with the numbers McKibben cites, and do you believe they accurately represent the consensus view among climate change scientists, as he states in his article?
2) If so, do you have any thoughts on the Romney and Obama energy plans, in light of this analysis?

The responses received are below:

Tapio Schneider, CalTech

Dear John,

Your project seems very interesting. I am curious about the outcome.

I am not familiar in detail with McKibben’s article (and cannot access it where I am right now, in China). However, here are some comments based on the information you cite.

1) Are you familiar with the numbers McKibben cites, and do you believe they accurately represent the consensus view among climate change scientists, as he states in his article?

a) The 2-degree threshold is frequently quoted as necessary to “avoid dangerous interference” with the climate system. However, it is an arbitrary number. There are no clearly established thresholds (“tipping points”) that will be crossed at 2 degrees warming. Climate change is a continuous process as best as we know. I personally am not in favor of establishing arbitrary thresholds (which, for example, can lead to policy disappointment and backlash if they are crossed, inhibiting action beyond them).

b) “Scientists estimate that humans can pour roughly 565 more gigatons of carbon dioxide into the atmosphere by midcentury and still have some reasonable hope of staying below two degrees. (“Reasonable,” in this case, means four chances in five, or somewhat worse odds than playing Russian roulette with a six-shooter.)…”

This seems plausible, although there are uncertainties in the 565 Gt figure.

c) 2,795 gigatons – McKibben writes, “…. The number describes the amount of carbon already contained in the proven coal and oil and gas reserves of the fossil-fuel companies, …”

These estimates are very uncertain. But the basic point McKibben makes appears valid: there probably is more carbon than we can burn to stay below 2 degrees warming.

The essential question is how important the 2 degree warming threshold is. Again, it is rather arbitrary.
2) If so, do you have any thoughts on the Romney and Obama energy plans, in light of this analysis?
Obama has been pursuing policies to limit the emission of greenhouse gases in a number of ways (e.g., fuel efficiency standards). I am not sufficiently familiar with Romney’s platform to comment.

John H. Seinfeld, Louis E. Nohl Professor, CalTech

McKibben’s article is profoundly important.

1) Are you familiar with the numbers McKibben cites, and do you believe they accurately represent the consensus view among climate change scientists, as he states in his article?

I am familiar with the numbers. I believe they accurately reflect the consensus among climate scientists.

2) If so, do you have any thoughts on the Romney and Obama energy plans, in light of this analysis?

Good questions. Two points are important to remember. First, there is some confusion in the McKibben article about whether the quantities are gigatons of CO2 or carbon. They are carbon. More on why this is important later. The second important point is that there is a substantial amount of uncertainty associated with each. The nature of this uncertainty is such that the critical levels of 2 and 565 could be substantially lower. But they could also be higher. If we are thinking about the problem as one of managing risk, we probably want the odds of an acceptable outcome to be better than the 4 out of 5 that McKibben discusses.

Now to the units issue. The estimate based on the climate models is that we must emit a total of less than 565 gigatons more carbon for an 80% change of keeping average warming below 2C. The last few years, global emissions from fossil fuel combustion have been about 9 gigatons (with an additional 1 gigaton from cutting forests). At this rate, we have 56 years to reach 565. Of course, if the rate goes up, we have less time.

CO2 is a molecule that contains one atom of carbon (atomic weight 12) and 2 atoms of oxygen (atomic weight 16 each or 32 total). The molecular weight of CO2 is 44 (=12+32). This is important because if you look at the quantities in units of CO2, they are much larger than in units of carbon. Recent emissions have been about 37 gigatons CO2 per year (because there is one ton of carbon in 3.67 tons of CO2).

McKibben’s article calculates the time to 565 gigatons of carbon as 565/31.6 = 16. This isn’t right because the 565 is carbon and the 31.6 is CO2.

The 2795 is also carbon, so the comparison between the 565 and the 2795 is apt, but it would take us about 300 years, at current rates, to burn all 2795 gigatons.

None of this should be interpreted to mean that climate change is not a serious problem. It will be very difficult to keep cumulative emissions below 565 gigatons carbon, and it is close to impossible without aggressive, dedicated action in many countries.

Still if the McKibben calculation were correct, there would be essentially no hope of staying within the target range, even with concerted action. The situation is serious, but there is hope, and with serious action, there are real prospects for success.

I hope this is useful.

Regards,
Chris Field

Second email from Chris Field

Hi John,

I looked again at the sources for McKibben’s article. It is not the case that he has an error, based on his sources. Sorry about misleading you in my earlier email. This is a complicated topic with lots of alternative ways of doing the calculations.

I would be happy to provide further information about alternative ways to do the calculations, but I have no problem with the approach that McKibben took.

Sally Benson, Stanford University

John,

I would have to spend more time looking at the numbers to draw a definitive conclusion about whether I agree with them. But, I would say that the general gist of of the article — relating to whether we are taking aggressive enough action to prevent climate change is correct. With the path we are on it is going to be very difficult, if not impossible, to meet a 2 deg C target.

The Obama Plan is more consistent with achieving this goal, but still not aggressive enough. The U.S. should be a world leader in helping to address this issue. The Romney plan would be a real step backward.

Sally

William W Nazaroff, Berkeley

John,

I heard a report about McKibben’s piece on the radio a few weeks ago.

I agree with the main ideas that assessment embodies. The specific numbers for (2) and (3) matter less than the qualitative points made. Specifically:

(1) Two degrees C is also what I understand to be the (approximate) scientific consensus with respect to the line that divides “maybe okay” from “dangerous anthropogenic interference” with respect to the climate system.

(2) The 2 °C number corresponds roughly to an atmospheric abundance of CO2 of 450 parts per million, about 55 ppm above where we are now. For every extra 2.1 gigatonnes of carbon that remains to the atmosphere, the CO2 level rises by 1 ppm. About 50% of what we emit remains for a pretty long time (~ a century) in the atmosphere. So, 55 ppm corresponds to 2 x 2.1 x 55 = 230 gigatonnes that can be safely emitted by mid century while staying below the target. I’d say that McKibben’s number of 565 gigatonnes is a relatively generous budget. That might be what we can emit over the whole 21st century, rather than just the first half.

(3) All the evidence I’ve seen supports a view that there is very much more carbon in fossil fuels than what the atmosphere can safely accommodate. It’s been said that we’ll run out of atmosphere [to accommodate our waste CO2] before we run out of fossil fuels. I agree.

Regarding your second question, I don’t have a lot of interest in studying our politicians’ postures. However, based on my assessment of the news reports of their positions, in the context of climate-change concerns, I would characterize Obama’s position as “disappointing,” and Romney’s as “disastrous.”

– Bill Nazaroff

Second email from Bill Nazaroff

John,

I just noticed a common error in the results you’ve quoted from McKibben. Items (2) and (3) are not expressed on a consistent basis: (2) is expressed as the mass of carbon dioxide whereas (3) refers only to carbon. The difference is in the molecular weight: 44 grams/mole for CO2 but only 12 grams per mole for C.

Note that in (2) the emissions are expressed in terms of gigatonnes of carbon dioxide (CO2 -> molecular weight = 44 g/mol). My answer for (2) was in terms of carbon only (molecular weight = 12 grams per mol). Converting McKibben’s estimate to the same terms I used, one would have 565 x 12/44 = 154 gigatonnes of carbon. It’s lower than what I’ve suggested, but the point is the same: our allowable emissions carbon budget for 2010-2050 is roughly 200 gigatonnes of carbon.

The reason this is a problem in McKibben’s analysis is that in point (3), he refers only to the carbon in fossil fuels. If one burned

2,795 gigatonnes of carbon in fossil fuels, the resulting emissions would be 2,795 x 44/12 = 10,250 gigatonnes of CO2. A proper comparison between (2) and (3) would be either 2,795:154 (carbon only) or 10,250:565 (carbon dioxide). The ratio is a factor of 18, not 5.

So, conditions may be even worse than McKibben reported.

Tom Kreutz, Princeton University

Dear John,

As someone who has spent the last decade working on solutions to global climate change:

1) Two degrees is, realistically, a lost cause.

2) The Obama campaign is deemphasizing climate change because it is a non-starter politically. Getting re-elected is difficult enough without also tilting at windmills. Pressing them about climate change will make no difference, so why bother? They are following the most sensible course politically.

3) Let’s not even start with the Republicans…

Good luck,

Tom Kreutz

Second email from Tom Kreutz

Dear John,

I actually don’t agree with McKibben’s numbers. Four significant figures is obviously absurd for a system so poorly understood. McKibben and the 2 degree folks are just anchoring the low end, latching onto a single idea (that less than exactly 2 degrees is “safe”, and 2.1 C is dangerous) and a single rather controversial number (x GT of CO2 = 2 C). It’s a political stance, not climate science. Don’t get the two confused.

Tom

John M Reilly, MIT

I don’t have time to check these but they seem likely to be reasonable. If anything the amount of carbon still to potentially burn is probably too low but not sure how defining this, but good enough to set up the question. I don’t think many serious analysts of thus think it is politically feasible to keep under the 2 degree limit but I guess a fair question and maybe the honest answer is that there is not much chance of making it but we need to …

Ray Dybzinski, Princeton University

Hi John,

I’m not a professor (yet:), and I am primarily a plant community ecologist, not a climate change expert per se. I don’t have perspective on these numbers, but I spoke with my advisor, Steve Pacala about them. He does have the perspective, and you ought to talk to him if you can (email or, better yet, call his assistant). Briefly, here’s my recounting of what he said (total hearsay and not quotable as such!). If you do talk to him, do me a favor and don’t use my recounting as a starting point (the extent to which I misunderstood or misremembered would embarrass me:)

1) We are undoubtedly on course to go past 400ppm (~2 degrees), and will likely plateau at ~500 ppm
2) see 1
3) rapid advances in natural gas production will replace coal fired power plants, cellulosic biofuel will soon outcompete transportation gas, solar is only 8 years out from undercutting carbon-based energy, and battery storage technology is increasing exponentially, which will mean viable storage for wind and solar-based energy capture.

Politically, the trick is to let these technologies “win” by not allowing vested interests in carbon-based energy to rig the playing field in their favor. If these technologies replace them, as Steve thinks they will, the proven reserves will never be burnt.

As I said, all hearsay:) Good luck with your project,
Ray Dybzinski

Robert H. Socolow, Princeton University

John: I think about the same issues. I had not read Bill McKibben’s article. Thank you for sending it.

McKibben’s numbers are right enough for you to proceed with your inquiry. I will be interested in seeing where it leads. I will be bringing the U.S. election into my own course this fall (starting in five days!), so do share what you learn.

I hope you will be able to probe beyond the numbers. One of the sharpest lines I can imagine being drawn between the two parties came when Gov. Romney mocked Pres. Obama for what Obama said in his victory speech in 2008 (quoted by McKibben). What did Romney intend to convey when he distanced himself from Obama’s quest “to slow the rise of the oceans and to heal the planet”? Instead — in apposition — Romney would look after the individual voter and his family. To me, this is the heart of the matter. Is our welfare as individuals decoupled from our welfare as a group?

And, now that Romney has thrown down this gauntlet (he has already repeated these remarks in a TV interview and presumably is doing so in speeches –you should find out), what calculations will be made by those in charge of the Obama campaign to leave the comment unchallenged or challenge it explicitly. Obama said in his acceptance speech that climate change is not a hoax. What else will he say?

Will any candidate for any other office note the underlying issue? In which Senatorial and Congressional campaigns will climate change be discussed?…

As for McKibben’s three numbers: a) Two degrees cannot be extracted from scientific inquiry. It is and must be a political number, the outcome of a risk assessment. My problem with McKibben’s presentation…is that any global target must emerge from a two-sided analysis, which takes into account the disruptions from climate change and from the solutions to climate change. McKibben assumes that there are risk-free alternatives to a fossil-fuel based energy system. There is no such thing. We need to decarbonize, but judiciously and with our eyes open that some solutions can be worse than the disease. 2) Emissions associated with any given temperature change are not as well understood as McKibben suggests. But his number is taken, I think, from work that is as good as science can now provide. The number, 565, for sure should be rounded off — it communicates an accuracy that doesn’t exist. 3) The “reserves” of fossil fuels is a much lower number than numbers that we should worry about. The quantity of fossil fuels that the world is organized to pull out of the ground includes not only present reserves (which are resources that are well described and that can be extracted with today’s technology at today’s prices), but other fields and mines (and extensions of today’s operating fields and mines) that can move into the proven reserves category with further investment. In my view, we should be worried about 5 degrees vs. 3 degrees. We will get at least to five degrees if we do nothing. We won’t stay below 3 degrees unless we start now to take the full problem seriously. If we slam on the brakes to get to 2 degrees, that could be reckless. This is shorthand and not for citation.

All my best,

Robert Socolow

William Happer, Princeton University

Dear Mr. Santore,

I am a working physicist, not a political operative. Perhaps you can find some politically inclined person to comment on the statements of McKibben somewhere else. I will not. The scientific facts will not change no matter who is elected and no matter what frenzied propaganda is poured out by one political side or another. Very few climate alarmists, know anything about the basic physics of climate. With all due modesty, I am a very good scientist, I know a lot about the physics of climate, and I don’t think there is any cause for alarm. My income is completely independent of what I say about climate. This is not true for the alarmists, who are the beneficiaries of billions of dollars in funding every year from government and non-governmental organizations. This funding might be less generous if people knew that the threat had been grossly exaggerated. I doubt that one percent of this amount is spent on the other side of the argument. Why don’t you do a little real journalism and heed the wise advice “follow the money?”

Best wishes,

Will Happer

Kerry Emanuel, MIT

Dear Mr. Santore: I am not the right person to ask your very sensible questions. Like many climate scientists, my expertise lies in the physical system , not in energy policy, etc. As far as the detrimental effects of global warming goes, all we know for sure is that any change much beyond the natural variability we see on human time scales entails risks that increase rapidly as we go outside that envelope. If one had to pick a single number, 2 degrees is probably a good one to pick, as it clearly lies outside the envelope of natural variability over the past thousand years or so, and is clearly an increase we will reach if nothing is done.

Sorry not to be of more help…

Kerry Emanuel

David Keith, Harvard University

John

Interesting, but I am just too busy to get involved at present.

I understand the need to do it for the purposes of selling to the public, but the focus on very specific numbers obscures the deep uncertainty in the problem. Climate risk gets larger the more we admit, but I do not believe there is a compelling scientific case that there is a sharp threshold 2 C. For decades there has been no doubt that if we burn all available fossil fuels we will radically alter the climate. I know I am not a normal audience, but for me the false precision around proven reserves is unhelpful. In one sense it underestimates the problem because resources are much larger than reserves and technological change converts resources to reserves. In another sense it overstates the problem, because it takes out the decisive role of choice and policy in deciding not to burn those fuels.

Yours,
David

James McCarthy, Harvard University

Hi John,

I am familiar with McKibben’s RS piece, and these numbers as well. I saw an earlier draft of the article, and RS did ask me to help with some fact checking.

It is a revealing exercise, and with respect policy implications of the Nature paper you point to, do take a look at David Victor’s response (attached).

Nobody knows what a 2 deg world will be like, but somehow the politicians in these discussions have become comfortable with the idea that it could be tolerable – but more than 2 deg would not. If you extrapolate from changes in extreme events over the past two decades or ponder even briefly the wide range of possible implications of the warming Arctic http://nsidc.org/arcticseaicenews/ for temperate region climate, to say that any single value for increased temperature represents a “safe” point is worse that foolish – it is reckless. Earth’s climate will be different (not just warmer) in ways that will surprise us. Would a reoccurrence of the 2003 heatwave in central Europe kill 15,000 people in Paris or more than 50,00 across Europe? No, because we learned something from this dreadful experience, but surprises will continue to be dealt from the climate deck of cards, and these are will to inflict severe damage with respect to loss of lives, livelihoods, property, etc.

As you surely know there is also uncertainty about the quantity of emitted C in the atmosphere that would yield the 2 deg increment, and when it would occur. We don’t know sufficiently well how contemporary carbon sinks, especially tropical forests and tundra biomes will respond, to know if they will continue to sequester C as they do today. A large part of the overall uncertainty also lies in the future of the masking aerosol effect.

Regardless of all this, Bill’s conclusion that unless the bulk of the “assets” of the fossil fuel companies remain buried where they currently are centuries from now Earth will be cooked, is difficult to refute.

The only responsible position for a person who in is a position to influence policies in this regard is to decarbonize the global economy in every way possible, now. And, unless the US leads it won’t happen.

President Obama promised much in this area, and has delivered impressively in his bargain with Detroit, via EPA emissions restrictions on power plants, and with DOD initiatives, but his efforts to nurture legislative actions has failed. A democratic House produced an OK (certainly not great) piece of legislation in 2009, but the Senate failed colossally to generate a companion bill. Since then obstructionist actions have thwarted necessary next steps. The President’s “all of the above” energy plan is best he is going to be able to do unless he can get both Houses of Congress on his side.

Governor Romney had a forward looking agenda on this topic when he was in office, and in some regards was ahead of his time. Even in the spring of 2011 as candidate Romney he was advancing reasonable ideas about energy and climate. With his actual record and his credible assertions that he knows how to work with the business community he could have positioned himself as one who could in fact do what the President had “promised” but failed to do. But he has since been captured by the climate science contrarian extremists, and in this regard he doesn’t look at all like Governor Romney. (You probably saw the NYT story on Friday about which candidate the fossil fuel industry is supporting.) It surely came as a surprise to many republican Governors members of Congress from the middle of the country when Romney said that he would not support continuation of investment tax credits for wind energy. This is a red-state issue – the middle of our country has benefitted enormously from this initiative – Iowa now gets 20% of its electricity from wind. But Romney has positioned himself as far from the President as he can be on this entire matter.

Good luck, and I would look forward to a reading your analysis.

Regards, Jim

J.W. Munger, Harvard University

John,

I haven’t actually read McKibben’s paper on this, but I stay abreast of the science behind the global carbon budget.

From the summary you give in your email I get the sense that McKibben has really put his finger on the essence of the argument.

There are some threshholds to the extent of warming and associated climate change that global society can tolerate without seriously disrupting the status quo, and there is a an amount of fossil fuel that could be burned without exceeding that. There can be some quibbles about the exact number (maybe its only 500 or maybe as much as 600), but it is not 2795. It is also not just the total tonnage burned but the rate. Slowing down gives more time for the natural system to absorb some of the new CO2.

The way McKibben makes the argument puts a whole different perspective on the kind of work I do looking at small variations in carbon uptake and emission by forests. If the whole 2795 Gt of fossil fuel reserves are burned the work I do is irrelevant.

To extend your russian roulette analogy a little further, burning all the fossil fuel reserves is like continuing to play the game and pull the trigger not once, but 5 times.

I would ask the candidates whether they were willing to accept the risk of irreversibly changing the climate beyond the limits society can easily cope with.

If climate scientists are wrong we can still burn the fuel later and not much permanent harm is done;
If climate scientists were right, burning all the reserves will have caused a change, and by the time we detect that it has happened it will be too late to reverse anything.

Frankly I don’t see anything in current government policy or campaign rhetoric that really takes account of the stark reality posed by McKibben’s article. Obama nibbles at the problem with some gasoline mileage standards, while Romney, with the financial support of big energy concerns says lets open up all the public lands to dig and drill.

Bill

Daniel James Cziczo, MIT

Hi John

It a pleasure to hear from someone in my home town (although it has been far too long since I’ve lived there!).

You certainly sound to have a very interesting project in front of you.

I did read the article you mention some weeks back and will do so again before we speak. In brief, the first and second points of the article which you outline below represent the consensus among scientists. I use the term ‘consensus’ to mean that the vast majority of scientists (something over 90% from what I’ve read) believe warming is due to human activities and these values are the consensus estimates (as laid out by, for example, the IPCC 2007 report.

I am less familiar with the values in your 3rd point as emission estimates and abundances of fuels come largely from industrial, not scientific peer reviewed, sources. The estimate I’ve seen recently is that if we burn out our fossil resources completely we’d lock into a best estimate 18 degree celsius temperature rise. Now, most of that is coal and that assumes complete use but you seem familiar with the numbers and I’m certain you understand what the impact of that temperature change on the Earth would be.

Regarding the actual plans of the candidates I did see last week that the National Academy of Science questioned both on climate changes. I know the Obama administration believes in global warming and the human connection. I saw that the Romney campaign stated that he believes warming is happening and that some fraction is human but that he doesn’t know the exact balance of human and natural. This is different than his statements during the primary (which said there wasn’t a human influence) but still not, as you can see, what the majority of scientists would conclude. I think the Romney campaign also suggests a large difference among scientists which also is not the case. I have not seen actual plans for tackling carbon dioxide or the other greenhouse gas emissions by either candidate (and I’m not sure they’ve actually released any – you likely know far more about this than I do).

I hope this helps get your project started John. It sounds like perhaps a phone or skype call this week might be the way to proceed. If so I’d suggest this coming Friday after noon as I’m largely free 1-5pm eastern time.

My thoughts on the campaigns: both are scared to death of the climate deniers and the big money behind them, and the general lack of public concern with this issue in the face of economic difficulties. I would be interested to hear if you get more than a minimal answer form either.

Sincerely,

Henry Jacoby

David Archer, University of Chicago

I had heard 1000 Gton C for the total emission, from an Allen et al paper in Nature a few years back, and we’ve already done 500, so 565 seems reasonable although not that well constrained.

For the total amount of burnable carbon I’ve always heard 5000 Gton as a canonical number, although it’s rather soft. It’s thought to be mostly coal, which isn’t known very well.

2) If so, do you have any thoughts on the Romney and Obama energy plans, in light of this analysis?

585 Gt CO2: Meinshausen’s Nature 2009 paper has been cited in the academic literature 232 times as of today, and his paper reflects a compilation of current climate models; I consider his results mainstream in the climate science community. How the results of his paper are used, however, is a different matter. The choice of 80% likelihood of avoiding 2°C (versus 50%, 95%, etc.) is a political/societal choice re risk management, and the scientific community does not have a position on what percentage likelihood is best for society – hence, does not have a position on 80% / 585 Gt CO2 as the limit. See Figure 3 in the Meinshausen paper for the implications of choosing a different likelihood %.

2795 Gt CO2: There are various estimates of fossil fuel reserves and resources, but this is one of the most recent, the methodology is documented, and it’s likely to be fairly reliable as long as one takes note of the uncertainties in the data. Note that the number includes only proven reserves (“resources” is a larger number that includes fuel that is thought to exist or known to exist but it is unclear whether it is feasible to extract), so the actual amount of fossil fuel in existence is likely to be larger.

It wouldn’t be appropriate for me to provide an opinion on the Romney and Obama energy plans.